DOJ Revises Corporate Criminal Enforcement Policies
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- On October 28, 2021, Deputy Attorney General Lisa Monaco announced revised corporate enforcement policies including rollbacks of certain DOJ policies softened under the Trump Administration. In addition to signaling generally a “get tough” approach to white collar crime designed to differentiate the Biden Administration, the revised guidance may have significant implications for corporations considering whether to self-report potential misconduct and for those already under investigation.
- Under the new policies: (1) prosecutors now must consider all prior corporate conduct—and not just similar conduct—in deciding whether to charge a corporation; (2) in a return to the “Yates Memo” standard, companies must disclose all relevant facts regarding all persons involved in corporate misconduct to obtain any cooperation credit; and (3) DOJ has rolled back Trump Administration guidance that independent corporate monitors would be imposed as the exception. In addition, DOJ announced the formation of a Corporate Crime Advisory Group to consider issues such as cooperation credit, corporate recidivism, and factors bearing on whether a case should be resolved by an NPA, DPA, or guilty plea.
- While only time will demonstrate how these recent developments will translate into enforcement outcomes, the current administration has sent a clear warning about its intended surge in white collar prosecutions. The importance for companies of developing and maintaining effective risk-based compliance programs has never been clearer. As DAG Monaco cautioned at the end of her recent address, companies that fail to implement such a program do so at their peril, especially those within DOJ’s crosshairs.