DOJ Announces New White Collar Criminal Enforcement Policies

By Sarah Wirskye - On

Deputy Attorney General (DAG) Lisa Monaco announced the Department of Justice’s (DOJ’s) new approach to prosecuting corporate crime at the ABA’s 36th National Institute on White Collar Crime. Htttps:// The primary announcements addressed: (1) individual accountability, (2) company prior conduct, and (3) corporate monitors.

Individual Accountability

The DOJ is restoring prior guidance that to be eligible for any cooperation credit, companies must provide the department 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. It is DOJ’s position that the DOJ’s investigative team is often better situated than company counsel to determine the relevance and culpability of individuals involved in misconduct, even for individuals who may be deemed by a corporation to be less than substantially involved in misconduct. To aid this assessment, cooperating companies will now be required to provide the government with all non-privileged information about individual wrongdoing. DAG Monaco refuted the potential argument that the government is going to unfairly prosecute minimal participants. She said that asking for this information does not alter the principles that govern fair and just charging decisions based on the facts, the law and the Principles of Federal Prosecution.

Company Prior Conduct

DOJ also announced that all prior misconduct will be evaluated when it comes to decisions about the proper resolution with a company, whether that misconduct is like the conduct at issue in a particular investigation. This conduct includes the full criminal, civil and regulatory record. Thus, the DOJ issued new guidance to prosecutors regarding what historical misconduct needs to be evaluated when considering corporate resolutions. This will include an amendment to the DOJ’s “Principles of Federal Prosecution of Business Organizations.”

After analyzing data on corporate resolutions, DOJ found that 10-20% of all significant corporate criminal resolutions involved companies who have previously entered a resolution with the DOJ. They will consider whether pretrial diversion – NPAs and DPAs – is appropriate for these “recidivist” companies. They will also evaluate whether companies take their obligations under a NPA or DPA seriously and will hold companies accountable for breaches of the same.

Corporate Monitors

The final change involves corporate monitors. Emphasizing that independent monitors have long been a tool to encourage and verify compliance, the DOJ rescinded the guidance suggesting that monitorships are disfavored or are the exception. The DOJ is free to require the imposition of independent monitors whenever it is appropriate to do so to satisfy prosecutors that a company is living up to its compliance and disclosure obligations under a DPA or NPA.

Going Forward

DAG Monaco She also introduced a new Corporate Crime Advisory Group. This group will consist of DOJ representatives involved in corporate criminal enforcement. It will consider issues such as monitorship selection, recidivism and NPA/DPA non-compliance, and benchmarks used to measure a successful company’s cooperation. It will also make recommendations on what resources can assist more rigorous enforcement, and how DOJ can ensure that individual accountability is prioritized. The advisory group will also propose revisions to the DOJ’s policies on corporate criminal enforcement.

She concluded her remarks with the five following points:

  1. Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct.
  2. For clients facing investigations, the department will review their whole criminal, civil and regulatory record.
  3. 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.
  4. For clients negotiating resolutions, there is no default presumption against corporate monitors. The decision about a monitor will be made by the facts and circumstances of each case.
  5. Looking to the future, this is a start — and not the end — of this administration’s actions to better combat corporate crime.

Overall, DAG Monaco’s announcement makes clear that white collar criminal enforcement will be a significant priority of the Biden administration and this DOJ.

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