On October 28, 2021, the U.S. Department of Justice (DOJ) announced a series of major policy changes to the department’s current enforcement approach aimed at restoring harsher enforcement tactics against corporations and white-collar criminal defendants. During a recent address to the American Bar Association, Deputy Attorney General Lisa O. Monaco warned that the policy changes were intended to reinforce the DOJ’s commitment to combatting crime in corporate boardrooms and executive suites.
Earlier this year, President Biden signaled that companies should expect increased investigation and enforcement activity by the United States and its law enforcement agencies – the DOJ, the
Securities and Exchange Commission, and the Department of the Treasury, to name just a few. Deputy AG Monaco’s announcement reaffirms the Biden Administration’s stated priority to increase corporate criminal investigations and return to enforcement tactics that the Trump Administration eschewed as counterproductive.
Deputy AG Monaco announced three major policy changes to the DOJ’s enforcement approach:
- Restoring prior guidance making clear that to be eligible for cooperation credit, companies may no longer limit disclosures to those they assess to be "substantially involved" in misconduct but, rather, must provide the department with all non-privileged information about individuals involved in or responsible for the misconduct at issue regardless of their position, status, seniority, or the extent of their involvement in the misconduct;
- Directing federal prosecutors to evaluate all prior criminal, civil, and regulatory misconduct when making decisions about the proper resolution with a company, whether or not that misconduct is similar to the conduct at issue in a particular investigation; and
- Rescinding prior guidance implying that independent monitors were disfavored and issuing new guidance making clear that the DOJ may impose independent monitors when
appropriate in order to satisfy federal prosecutors that a company is honoring its obligations under a Deferred Prosecution or Non-Prosecution Agreement.
In closing, Deputy AG Monaco cautioned that these policy changes were only the first step in reinforcing the Administration’s commitment to combatting corporate crime: "Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct – or else it’s going to cost them down the line."
Companies should prepare accordingly, including by reviewing and updating their compliance programs and ethics and conflict of interest policies and training.
If your company would like our assistance in these regards, Calfee’s White-Collar Defense and
Investigations attorneys stand ready to help.