September 20, 2022

White Collar: DOJ Revises Corporate Criminal Enforcement Policies

In a recent speech, Deputy AG Lisa Monaco announced changes to the DOJ’s policies on corporate criminal enforcement. According to this Morgan Lewis memo, the changes are being billed by the DOJ as “one of the most comprehensive overhauls of corporate enforcement in years, build on existing policies in an attempt to further DOJ’s current tough-on-white-collar-crime approach.”  Among other things, the changes are intended to enhance individual accountability, modify the way in which the DOJ treats prior misconduct, and encourage self-disclosure.  This excerpt on the policy’s efforts to enhance individual accountability indicates that companies desiring cooperation credit need to move very quickly to get information to the government:

Monaco described individual accountability as DOJ’s “top priority” and said that it is committed to “do more and move faster.” To that end, Monaco announced changes designed to “speed up the clock” on individual prosecutions. Under the policy announced by former Deputy Attorney General (DAG) Sally Yates in 2015, and relaxed under the prior administration, companies seeking cooperation credit were required to completely disclose to DOJ all relevant facts about individual misconduct.

Monaco announced on September 15 a new policy that incorporates the Yates memo’s message while placing additional emphasis on the speed of disclosure by requiring cooperating companies to come forward more quickly with evidence of individual wrongdoing. Monaco said that when a company discovers a “hot” document or email that points to individual criminal culpability, it should immediately produce it to DOJ.

According to Monaco, failure to quickly turn over evidence implicating individuals—even to complete an internal investigation—or “gamesmanship” with the timing of document productions, will result in the reduction or denial of cooperation credit. Monaco also stated that DOJ will not sign DPAs or NPAs with companies until it has either commenced any relevant individual prosecutions or has developed a full investigative plan and timeline for doing so.

In her speech, Deputy AG Monaco also said that the DOJ would release new guidance for prosecutors about identifying the need for & selecting an independent compliance monitor and providing appropriate oversight to the monitor’s work. As Liz blogged yesterday over on, Monaco also addressed how the DOJ will consider corporate compensation programs & clawback policies in criminal enforcement decisions.  We’re posting memos in our “White Collar Crime” Practice Area.

John Jenkins