Monaco Deputy Attorney General Reiterates DOJ’s Emphasis on Prosecuting Individuals, Announces New Guidelines for Prosecuting Corporate Crimes – Corporate Crime

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On September 15, Deputy Attorney General (DAG) Lisa O. Monaco announced changes to the Department of Justice (DOJ) Corporate Crime Program. In his speech, DAG Monaco highlighted the DOJ’s commitment to prosecuting corporate crimes and highlighted five key points about how the DOJ can better “square [its
enforcement program] with [the] realities of [a] modern economy:

  1. Continued focus on individual prosecutions.Continuing a theme dating back to his 2021 speech reinstating Yates’ memo, DAG Monaco made it clear that the DOJ’s top priority is to prosecute individuals. In order to facilitate this, DAG Monaco has announced (i) new restrictions on the ability of entities to receive cooperation credits if they fail to do so”timely“produce” all relevant, non-privileged facts and evidence regarding individual misconduct; and (ii) instructed prosecutors to “endeavour” to “seek” individual criminal prosecutions “before or concurrently with” a corporate resolution. Under new direction from DAG Monaco, a prosecutor cannot avoid bringing individual charges at the time a corporate resolution is entered into unless he receives written permission from his attorney or the Assistant United States Attorney General.

  2. Greater punishment for corporate “repeat”. Despite heated arguments from the legal and business communities over the past year, DAG Monaco has again emphasized that the DOJ will continue to consider “the entire criminal, civil, and regulatory record of any business” when deciding. resolution. In particular, DAG Monaco ordered prosecutors to give the most weight to all criminal resolutions (US or foreign, although the US is the “most significant”) entered into in the 10 years prior to the conduct making the arrest. subject matter of the investigation and to all civil or regulatory resolutions entered into within the 5 years prior to the conduct being investigated. However, the new DAG Monaco guidelines do not completely dismiss the “dated” conduct – they simply direct prosecutors to give this misconduct “less” weight. Finally, DAG Monaco made it clear that the DOJ would disadvantage companies that have multiple successive non-prosecution or deferred prosecution agreements – “companies can no longer assume that they are entitled to a non-prosecution or deferred prosecution agreement because they are frequent travellers. Under this administration, gone are the days when companies could charge the costs of an enforcement action to their business as a business risk.

  3. Increased emphasis on voluntary self-disclosure.Building on DOJ efforts over the past six years (Foreign Corrupt Practices Act of 1977 (FCPA) self-disclosure, Antitrust Leniency, etc.), DAG Monaco announced that all DOJ “components” pursuing corporate misdemeanors will be required to have a written self-disclosure program urging companies to come forward. While the specifics vary across different components of the DOJ, DAG Monaco emphasized that “predictability is key” and announced some key common principles:
    1. “In the absence of aggravating factors”, the DOJ
      not “seeking a guilty plea when a company has willfully disclosed, cooperated and remedied wrongdoing;” and

    2. The GM will not “require an independent compliance monitor” for such a business if, per the regulations, it has “implemented and tested an effective compliance program.”

DAG Monaco ended this part of her speech with a not particularly veiled threat – she expects “resolutions over the next few months to reaffirm how much better companies fare when they come forward and come forward” .

  1. Greater clarity on monitors. DAG Monaco also announced the publication of new guidelines on the selection and management of freelance instructors. In particular, she announced:
    1. new guidelines for prosecutors on when monitors are appropriate, how they should be selected and how they should be supervised;

    2. all new monitors will be selected “in accordance with a documented selection process that operates transparently and consistently” with the process “readily available to the public”; and

    3. all new monitoring must be “tailored to the misconduct and related compliance shortcomings” of the settlement firm with the monitor’s responsibilities and authority “clearly defined” in writing and a “clear work plan” agreed upon at the advance between the settlement company and the monitor. Additionally, the prosecutor is now responsible for ensuring that he receives “regular updates” from the monitor to ensure that the monitor “stays on task and on budget”.


  2. Encourage a corporate culture of compliance. Finally, DAG Monaco also announced that the DOJ’s assessment of the effectiveness of a company’s compliance program would extend beyond the quality of its resources to include:
    1. Carrots of employees and managers. That is, what incentives, if any, does the company offer for compliant behavior? For example, did the company use “positive metrics and benchmarks to reward compliance-promoting behaviors?”

    2. Employees and executives sticks. In other words, what clearly defined financial penalties has the company actually applied for non-compliant behavior? In particular, DAG Monaco stressed that the DOJ will look favorably on companies that “recover[] chargeback” or “otherwise impose[] pecuniary penalties. »

Combined with the DOJ’s request for $250 million in funding for corporate crime programs, DAG Monaco’s speech makes it clear that DOJ management no longer wants to accept business as usual and wants to make a business case for what it considers responsible corporate behavior.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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