DOJ Continues to Raise the Stakes on – and Ex Ante Expectations for – Internal Corporate Investigations

White-Collar Investigations and Litigation

Last month, Deputy Attorney General Lisa O. Monaco unveiled updates and revisions to the U.S. Department of Justice policies for corporate criminal enforcement. (See DOJ Memorandum, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (September 15, 2022); see also Monaco’s Remarks on Corporate Criminal Enforcement delivered at New York University on September 15, 2022.)

During her remarks, Deputy AG Monaco explained that through a mix of incentives and deterrence the new guidance pushes companies to do more regarding internal investigations and corporate compliance, including by more quickly reporting evidence to the DOJ and by more strongly discouraging misconduct by shaping financial compensation around promoting compliance and avoiding improperly risky behavior.

Deputy AG Monaco emphasized that under the new guidance "speed is of the essence" in providing information to the DOJ. According to Monaco, absent aggravating factors, companies can hope to avoid entering a guilty plea or engaging a compliance monitor if they have rapidly and voluntarily self-disclosed, cooperated, and remediated misconduct. However, "undue or intentional delay in producing information or documents – particularly those that show individual culpability – will result in the reduction or denial of cooperation credit."

Unfortunately, the new guidance revealed no bright-line tests, leaving the DOJ with the ultimate discretion on whether cooperation was quick enough. But by making decisions about whether and when to turn over information more consequential, the DOJ has effectively raised the stakes for companies facing a potential government investigation.

Another notable change is a new emphasis on corporate compensation systems that promote compliant behavior, such as executive compensation clawback provisions.

Both changes are clear indications of the DOJ’s increased interest in directing companies – ex ante and at a more functional level – with respect to when and how they should act in situations such as these.

In response, corporations should evaluate their current compliance programs to ensure that they align with the new policies. If there are any questions, Calfee is ready to help. We will carefully follow upcoming DOJ guidance to see how these changes are implemented and provide continued updates.   

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