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DOJ Announces New Policies Addressing White Collar Criminal Enforcement

Deputy Attorney General Lisa Monaco announced the Department of Justice’s new approach to prosecuting corporate crime, including policy changes that will reduce constraints on prosecutors and increase scrutiny on companies, particularly repeat offenders.

Addressing the American Bar Association’s annual white-collar crime conference on October 28, 2021, Monaco outlined DOJ’s plans to prioritize white-collar criminal enforcement, including three new actions that will immediately take effect. First, Monaco announced that the agency will restore prior guidance requiring cooperating companies to make broader disclosures to the government. Second, DOJ will evaluate all prior misconduct by a company, not just related misconduct, when determining an appropriate resolution. Third, Monaco rescinded prior department guidance limiting the imposition of corporate monitors, stating that the DOJ “is free to require the imposition of independent monitors” whenever appropriate.

Broader Company Disclosures

Under the new guidance, companies hoping for cooperation credit must provide DOJ with all non-privileged information about individuals involved in or responsible for the misconduct at issue. Monaco emphasized that failure to do so will bar a company’s eligibility for cooperation credit. She expressed that past approaches, in which companies could limit disclosures to those individuals they deemed to be “substantially involved” in misconduct, “afford[ed] companies too much discretion.” Asserting that the DOJ’s investigative team is “better situated than company counsel to determine the relevance and culpability of individuals,” Monaco maintained that the government will not “unfairly prosecute minimal participants.”

Consideration of All Prior Misconduct

Going forward, DOJ will consider a significantly broader range of past misconduct when determining the appropriate resolution for a corporate offender. An amendment to the department’s “Principles of Federal Prosecution of Business Organizations” will direct prosecutors to consider “the full criminal, civil and regulatory record of any company” when determining what resolution is appropriate for a company under criminal investigation. Monaco stressed that this will include “whether th[e] company was prosecuted by another country or state, or whether th[e] company has a history of running afoul of regulators.” This is a significant departure from DOJ’s past practice of taking into consideration similar past misconduct, such as looking at whether a company alleged to have violated the FCPA had done so previously. 

Wider Use of Corporate Monitors

Finally, under the new guidance companies entering deferred and non-prosecution agreements are likely to see once again DOJ requiring the imposition of a corporate monitor. Reversing a shift under the Trump administration that saw the imposition of a monitor to be “the exception and not the rule,” prosecutors may now require an independent monitor “whenever it is appropriate.”

Looking Forward

Monaco also announced that the department is evaluating additional policy changes, particularly those concerning companies that are “repeat offenders.” DOJ will analyze data on corporate resolutions to consider whether pretrial diversions, such as NPAs and DPAs, are appropriate for recidivist companies. Additionally, Monaco hinted that DOJ will take a tougher line against companies failing to satisfy fully their obligations under an NPA or DPA. She expressed concern that some companies have not taken such obligations seriously in the past and declared that in the future any violations will be met with “serious consequences.”

What This Means for Companies

The Biden administration is prioritizing the investigation and prosecution of corporate crime and is giving DOJ prosecutors broader power to do so. The new changes Monaco announced are only a “first step,” and the department will create an advisory group to study additional changes. Companies should actively review compliance programs to ensure they adequately monitor for and remediate misconduct. Though Monaco acknowledged that it can be costly to adopt effective measures that proactively deter misconduct, she declared that the failure to do so may well cost companies down the line.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 306
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About this Author

Gregory G. Marshall Washington D.C. Partner Attorney White-Collar Crime Litigation Bradley Arant Boult Cummings LLP
Partner

A former federal prosecutor with extensive trial and appellate experience, Greg Marshall represents companies and individuals defending government enforcement, white-collar criminal, and civil litigation matters. Greg also conducts internal investigations and advises clients on compliance issues. He has assisted clients in the financial services, healthcare, government contracting, technology, export, and education sectors.

Greg has defended investigations and cases involving the False Claims Act, the Sherman Act, the Foreign Corrupt Practices...

202-719-8207
Erin K. Sullivan Washington D.C. Corporate Government Investigations Bradley Arant Boult Cummings LLP
Partner

Erin Sullivan has years of experience representing corporate and individual clients involved in investigations, prosecutions, and civil enforcement actions by federal and state government entities. She routinely conducts internal investigations, whether prompted by an existing government investigation or initiated internally for business or compliance reasons. Erin also counsels clients on an array of compliance issues, ranging from general compliance best practices to specific compliance with federal laws such as the Foreign Corrupt Practices Act and U.S. sanctions and...

202-719-8208
Associate

Virginia Wright is an associate in the Government Enforcement and Investigations Practice Group.

 Virginia received a J.D. from Harvard Law School, where she was an article editor and executive technical editor for the Journal of Law and Gender and Professional Chair for HLS Lambda. She has a B.A. (summa cum laude) in Classical Studies from the University of Alabama, where she was a member of the 7th Cohort of the University Fellows Experience.

205-521-8876
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