Featured Expert Contributor, White Collar Crime and Corporate Compliance
Gregory A. Brower is Chief Global Compliance Officer for Wynn Resorts. He also serves on WLF Legal Policy Advisory Board and is a former U.S. Attorney.
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In a recent speech at New York University and a follow-up memo dated September 15, Deputy Attorney General Lisa Monaco elaborated on her previous announcement of various changes to DOJ’s policy on prosecution of corporate crime. This new guidance provides some important additional detail and clarity on DOJ’s approach.
First, the new memo reinforces individual accountability as a priority in corporate investigations, emphasizing that a company must promptly notify prosecutors when it discovers evidence indicating individual criminal culpability. Although not a new priority for DOJ, the DAG reiterated that all relevant, non-privileged facts must be timely disclosed for a company to receive cooperation credit. She also indicated that going forward, DOJ intends to seek resolutions with individual targets before or at the same time as a related resolution with a corporate target, not after.
Second, the memo revisited the issue of corporate recidivism, a topic about which the DAG’s October 2021 speech inspired quite a lot of discussion. In response to feedback received, the memo provides some additional clarity on exactly how DOJ will evaluate a company’s history of misconduct when deciding whether to consider it a repeat offender. Specifically, the memo confirms that DOJ will focus most significantly on past domestic criminal resolutions and past misconduct involving the same individuals implicated in the subject investigation. She also explained that past criminal resolutions more than ten years old and past civil resolutions more than five years old will be given less relevance when considering a potential corporate resolution. Moreover, the memo makes clear that successive DPAs or NPAs for the same company will be disfavored and will have to be reviewed by her office.
Third, the memo addresses the issue of compliance monitors, confirming that “Department prosecutors will not apply any general presumption against requiring an independent compliance monitor…nor will they apply any presumption in favor of imposing one.” The memo reiterates DOJ’s belief in the value of monitorships while acknowledging the significant burden that such oversight can place on a company and provides specific guidance to DOJ attorneys concerning the selection of monitors where appropriate and the supervision of monitorships once imposed.
Finally, the memo confirms that the DAG has directed DOJ’s Criminal Division to develop new guidance by the end of the year that will address the issue of compliance-related compensation in the corporate context. This guidance will presumably inform DOJ’s future consideration of corporate resolutions by focusing on whether a company’s compensation system appropriately rewards compliance and penalizes individual bad actors.
The bottom line is that DOJ clearly intends to increase its focus on corporate enforcement actions in the months ahead and has requested $250 million from Congress to help fund this effort next year. As Deputy Attorney General Monaco herself made clear in her most recent remarks, DOJ is “not done” and companies “should feel empowered to do the right thing—to invest in compliance and culture.”