Indicted After Your Company Cooperated With DOJ? What Fraud Division Directive 26-12 Means for Florida Owners and Executives

Your company gets a federal grand jury subpoena. It hires a large law firm, and a week later two lawyers you have never met ask you to sit down for an interview. They are polite. They tell you they represent the company. Most people hear that sentence and miss what it means: nobody in that room represents you.

On October 1, 2026, the Justice Department's National Fraud Enforcement Division issued Directive 26-12, its rulebook for corporate fraud cases. The memo is written to prosecutors and it talks about companies. The people it puts in front of a judge are owners, executives, billing managers, and medical directors.

Company counsel represent the company. In an internal investigation interview, nobody in the room represents you.

Key Takeaways

• Directive 26-12, issued October 1, 2026, sets corporate enforcement priorities for DOJ's Fraud Division: health care, government programs, revenue, and trade.
• Health care priorities include fraud under 18 U.S.C. § 1347, controlled substance distribution under 21 U.S.C. § 841, and Food, Drug, and Cosmetic Act violations.
• Under Justice Manual § 9-28.700, a company earns cooperation credit only by identifying every individual involved in the misconduct, regardless of position or seniority.
• Company lawyers represent the company. What an employee says in an internal interview can be handed to federal prosecutors and used to indict that employee.
• South Florida is a longtime center of federal health care fraud enforcement, so Florida providers, pharmacies, labs, and their managers sit inside the first priority.

What Directive 26-12 Says

The memo is five pages, signed by Assistant Attorney General Colin M. McDonald and addressed to every prosecutor in the Fraud Division. It does four things.

First, it names the corporate cases the Division wants: schemes in the health care industry, including health care fraud, distribution of controlled substances, and violations of the Food, Drug, and Cosmetic Act; schemes touching procurement and government contracts; significant evasion of internal or external revenue; and tariff evasion, importation, and forced labor. That list tracks the enforcement priorities the Division announced in August.

Second, it routes every corporate matter through the Division's new Corporate Enforcement Section. Prosecutors had seven days, until October 8, to notify that section's chief of every ongoing corporate investigation. New ones must be flagged promptly.

Five pages, one desk. Every open corporate fraud investigation in the Division now routes through the new Corporate Enforcement Section.

Third, it lists ten factors that get "great weight" in deciding whether to charge a company and on what terms. Among them: knowledge of or involvement in the scheme by management, efforts to conceal the conduct from agencies or auditors, conduct lasting three years or more, conduct reaching three or more federal districts, and $25 million or more in loss.

Fourth, it orders Division leadership to build programs that reward insiders who bring information to the government, including, in the memo's words, "those who participated in the criminal conduct."

Prosecutors are also told to follow the Principles of Federal Prosecution of Business Organizations and the Department's Corporate Enforcement and Voluntary Self-Disclosure Policy. Those two documents are where the trouble for individuals starts.

What the Government Is Building: Cases Against People

A company cannot go to prison. The Justice Manual says so in plainer terms: under § 9-28.210, prosecuting a corporation is not a substitute for prosecuting the individuals responsible. The directive itself says corporate enforcement "furthers individual prosecutions."

Here is how. Under Justice Manual § 9-28.700, a company gets no cooperation credit at all unless it identifies every individual involved in or responsible for the misconduct, regardless of position, status, or seniority, and turns over all the relevant facts about them. The disclosure policy then offers the company a declination if it self-reports, cooperates, and remediates, and in a near miss a non-prosecution agreement with a fine reduction of 50 to 75 percent. Remediation usually means firing people. We saw this play out in August, when the company got a declination and its founder was indicted the same day.

Put those together. The company's internal investigation becomes an evidence-gathering exercise run by private lawyers, paid for by the company, and delivered to the government. Interview summaries, emails, billing data, and a narrative of who knew what all go over. The company has every incentive to draw the line of blame around a handful of people and stand on the other side of it.

"A company cannot go to prison."— Aaron M. Cohen, AMC Defense Law

The memo adds two accelerants. The Division says its National Fraud Detection Center is generating leads and opening new individual and corporate investigations "at a rapid pace." And the insider programs it orders will pay off for whoever arrives first. In a scheme with six participants, five of them will learn about the sixth's cooperation from the indictment.

Exposure and Charges for Individuals

The directive creates no new crime. It changes who supplies the evidence. The charges are the familiar ones:

• Health care fraud, 18 U.S.C. § 1347: up to 10 years per count.
• Wire fraud, 18 U.S.C. § 1343: up to 20 years per count, with conspiracy under 18 U.S.C. § 1349 carrying the same maximum.
• Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b): up to 10 years.
• Controlled substances, 21 U.S.C. § 841 and § 846: penalties depend on drug type and quantity.
• Misbranding and unapproved drugs, 21 U.S.C. § 331: a felony of up to three years under § 333(a)(2) when the government proves intent to defraud or mislead.

In each of the fraud counts the government must prove you acted knowingly and with intent to defraud. A title is not proof of intent. Neither is a signature on a form someone else prepared. That is where most of these cases are fought.

Sentencing is driven by the federal guidelines, and the directive's charging factors read like a list of guideline enhancements: loss amount, number of people harmed, a management role, concealment. The fraud loss table changes on November 1, 2026, which matters to anyone sentenced after that date.

The State Layer and the Internal Interview

Florida adds its own layer. Medicaid provider fraud under Fla. Stat. § 409.920 and patient brokering under Fla. Stat. § 817.505 are state felonies, and state and federal prosecutors share information. Clearing one does not clear the other.

A hypothetical. A billing director at a Palm Beach County laboratory is interviewed for two hours by the lab's outside counsel after an HHS-OIG subpoena. She answers everything, because she wants to help. Six months later the lab signs a non-prosecution agreement. Her interview summary is in the government's file and her name is in the indictment.

The interview summary goes over with the company's cooperation. Six months later, the name in it is the name in the indictment.

Mistakes People Make When the Company's Lawyers Call

Sitting for the internal interview alone. Since Upjohn Co. v. United States, company counsel give a short warning before these interviews: we represent the company, the privilege belongs to the company, and the company can waive it. Under the cooperation rules above, the company has every reason to waive it.

Cleaning up files. Deleting texts, editing records, or backdating a compliance policy turns a defensible case into an obstruction case under 18 U.S.C. § 1519, which carries up to 20 years. Concealment is also the second factor on the directive's charging list.

Talking to agents at the door. A false statement in a casual conversation is a separate felony under 18 U.S.C. § 1001. I have written about what to do when FBI agents show up; the short version is that you take the card and call a lawyer.

Comparing notes with coworkers. It feels natural. To a prosecutor it looks like witness coordination.

Waiting. People assume that if the company is handling it, they are covered. By the time a letter from the U.S. Attorney's Office arrives saying you are a target of a grand jury investigation, the company's version of events has been in the government's hands for months.

How These Cases Are Defended

The first move is your own lawyer, before the internal interview, not after. Many companies' bylaws and employment agreements provide for advancing legal fees to officers and employees, and Florida corporate law permits it. Ask. A federal criminal defense attorney who answers only to you can find out where you stand: witness, subject, or target.

From there the decision is whether to talk and on what terms. A proffer session gives limited protection and real risk, and it should never be the default. Sometimes the right move is a quiet presentation to the prosecutor showing why you should not be charged. Sometimes it is silence.

If you have already been indicted, the company's cooperation is something to attack as well as fear. The company's account was assembled by lawyers whose client had millions of dollars riding on blaming someone else. Its witnesses kept their jobs or their deals by agreeing with that account. The defense is entitled to what the company told the government, what it was promised, and what its internal investigation left out. Good faith, reliance on billing consultants or compliance staff, and lack of knowledge are intent defenses that corporate narratives tend to flatten.

If the case moves to sentencing, the fight shifts to the loss amount dispute, role, and a variance under 18 U.S.C. § 3553(a). A federal sentencing attorney who contests the government's loss figure line by line can change the guideline range more than any other single step.

Why Timing Matters Now

As of October 8, every open corporate fraud investigation in the Division sits on one desk in Washington. Files that were moving slowly are being looked at again by people whose job is to resolve them.

Companies under investigation are deciding right now whether to disclose and cooperate, because the policy rewards speed. So are their former employees. Charging decisions are still fluid before an indictment, and that is when a healthcare fraud attorney or white collar defense attorney can do the most. After the indictment the options narrow, but they do not disappear, and the first thirty days of a federal case set much of what follows.

One limit worth knowing: the directive does not cover cases a U.S. Attorney's Office assigns to its own District Fraud Counsel without Division supervision. In the Southern District of Florida and the Middle District of Florida, who is running your case affects how it gets resolved.

Common Questions

Facing Federal Fraud Charges or a Federal Investigation in Florida?

AMC Defense Law represents individuals, owners, and executives in federal fraud investigations and prosecutions in the Southern District of Florida, the Middle District of Florida, and federal courts nationwide. If your company is under investigation, if you have been asked to sit for an interview, or if you have been indicted, the conversation is confidential.

The first move is your own lawyer, before the internal interview, not after.

Call 561-542-5494 or request a confidential consultation. The firm's office is in Boca Raton, Florida.

If you or your loved ones have been arrested or are under federal investigation after a company's cooperation with the Justice Department, call Aaron M. Cohen, 24 hours a day to get help.

This article is provided for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship with AMC Defense Law. Every case is different, and the outcome of any matter depends on its own facts and the applicable law. If you are under investigation or have been charged with a crime, consult a qualified attorney about your specific situation.

About the author: Aaron M. Cohen is the founder and principal attorney of AMC Defense Law, a criminal defense firm in Boca Raton, Florida, with more than 30 years of experience in state and federal courts. He is admitted to practice in Florida, New York, New Jersey, and the District of Columbia, and before the United States District Courts for the Southern and Middle Districts of Florida, the Southern, Eastern, and Western Districts of New York, the District of New Jersey, and the Northern District of Texas. He appears pro hac vice in other federal districts nationwide. The firm represents clients in federal investigations and prosecutions involving healthcare fraud, Anti-Kickback Statute matters, DME and telemedicine fraud, peptide and compounded-drug enforcement, controlled-substance and drug conspiracy cases, financial crimes, and complex federal litigation, in Florida and nationwide.