In a recent speech at New York University, Deputy Attorney General Lisa Monaco of the United States Department of Justice (the "DOJ") announced new changes to the agency's corporate criminal enforcement policies. The changes are outlined in a new memo titled "Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group" (the "DOJ Memo").
In her speech, Monaco noted that she formed the Corporate Crime Advisory Group in October 2021 to review the agency's corporate enforcement efforts. Within a year, DOJ published the DOJ Memo to elaborate on recent corporate enforcement advances. While the DOJ Memo addresses policy changes in a number of areas, Monaco's speech focused on Individual Accountability, History of Misconduct, Voluntary Self-Disclosure, and Independent Compliance Monitors, all of which are outlined in more detail below.
INDIVIDUAL ACCOUNTABILITY
According to Monaco, current data indicates an overall decline in corporate criminal prosecutions over the last ten years. "We need to do more and move faster." DOJ will require cooperating companies to come forward with important evidence without delay. Going forward, deliberate delay in producing information or documents will result in cooperation credit being reduced or denied.
HISTORY OF MISCONDUCT
Between 10% and 20% of large corporate criminal resolutions have involved repeat offenders. Based on that statistic, DOJ will consider a full range of company information when deciding on an appropriate resolution. Such considerations include taking into account the nature and circumstances of the prior misconduct and whether the present misconduct shares the same foundational causes. Successive non-prosecution or deferred prosecution agreements with the same company will be deemed unfavorable and any new proposals will be scrutinized by the Department.
VOLUNTARY SELF-DISCLOSURE
According to Monaco, voluntary self-disclosure is the clearest path for a company to avoid a guilty plea or an indictment. "If you look at recent cases, you can see the value proposition. Voluntary self-disclosure cases have resulted in declinations and non-prosecution agreements with no significant criminal penalties. By contrast, recent cases that did not involve self-disclosure have resulted in guilty pleas and billions of dollars in criminal penalties, this year alone." As a result, for the first time ever, incentives for voluntary self-disclosure will be a component in every Department component that prosecutes corporate crime and will include incentive policies that provide clear expectations of what self-disclosure involves.
INDEPENDENT COMPLIANCE MONITORS
The Department will release new guidance for prosecutors regarding "how to identify the need for a monitor, how to select a monitor, and how to oversee the monitor’s work to increase the likelihood of success." In addition, a documented selection process will be implemented to ensure transparency and consistency.
Monaco concluded with the statement, "[c]ompanies should feel empowered to do the right thing—to invest in compliance and culture, and to step up and own up when misconduct occurs. Companies that do so will welcome the announcements today. For those who don’t, however, our Department prosecutors will be empowered, too—to hold accountable those who don’t follow the law."
A copy of Monaco's speech and a link to the DOJ Memo are available here.
For more information regarding DOJ enforcement, please see the Government Prosecutions section of the Enforcement Actions Database.