On October 28, 2021, Deputy Attorney General Lisa O. Monaco announced revisions to the DOJ’s Corporate Criminal Enforcement Policies, emphasizing three new actions the DOJ is taking:
(1) Individual Accountability. To be eligible for any cooperation credit, companies must provide the DOJ with all non-privileged information about individuals involved in or responsible for the misconduct at issue. A company must identify all individuals involved in the misconduct, regardless of their position, status or seniority. It will no longer be sufficient for companies to limit disclosures to those they assess to be “substantially involved” in the misconduct.
(2) Company Prior Misconduct. All prior misconduct needs to be evaluated when it comes to decisions about the proper resolution with a company, regardless of whether that misconduct is similar to the conduct at issue in a particular investigation. Going forward, prosecutors will be directed to consider the full criminal, civil and regulatory record of any company when deciding what resolution is appropriate for a company that is the subject or target of a criminal investigation.
(3) Corporate Monitors. Going forward, the DOJ is free to require the imposition of independent monitors whenever it is appropriate to do so in order to satisfy prosecutors that a company is living up to its compliance and disclosure obligations. To the extent that prior DOJ guidance suggested that monitorships are disfavored or are the exception, that guidance is rescinded.
DAG Monaco concluded with the following points:
- Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct — or else it’s going to cost them down the line.
- For clients facing investigations, as of today, the department will review their whole criminal, civil and regulatory record — not just a sliver of that record.
- For clients cooperating with the government, they need to identify all individuals involved in the misconduct — not just those substantially involved — and produce all non-privileged information about those individuals’ involvement.
- For clients negotiating resolutions, there is no default presumption against corporate monitors. That decision about a monitor will be made by the facts and circumstances of each case.
- Looking to the future, this is a start — and not the end — of this administration’s actions to better combat corporate crime.
A video of DAG Monaco’s Keynote Address at the ABA’s 36th National Institute on White Collar Crime can be found HERE. Here prepared remarks can be found HERE.
DAG Monaco’s October 28, 2021 Memorandum re Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies can be found HERE.