DOJ Updates Policies On Corporate Ethics And Compliance

Published date26 September 2022
Subject MatterCorporate/Commercial Law, Criminal Law, Compliance, Corporate and Company Law, Corporate Crime
Law FirmFoley Hoag LLP
AuthorMs Rachel Kerner and Madeleine Rodriguez

Last week, Deputy Attorney General Lisa O. Monaco delivered remarks on corporate criminal enforcement, announcing revisions to DOJ's policies for addressing corporate ethics and compliance matters. These changes reflect an increased focus on holding individuals accountable for corporate wrongdoing, guidance on handling corporate recidivism, further transparency regarding the appropriateness and necessity of monitorships; incentives for voluntary self-disclosure of misconduct; and a recognition of compensation related incentives to garner a corporate culture of compliance.

The Deputy Attorney General's statements come amid a continuing development of DOJ's corporate enforcement policies and practices over the past few years. In 2021, DOJ announced three immediate changes to its policies and practices intended to strengthen its ability to hold individuals and corporations responsible for criminal conduct. First, it restored prior guidance making clear that to be eligible for any cooperation credit, companies 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, or seniority. Second, it issued new guidance to prosecutors regarding what historical misconduct needs to be evaluated when considering corporate resolutions, directing that prosecutors can and should consider the full range of prior misconduct, not just a narrower subset of similar misconduct. Third, it rescinded any guidance that suggested monitorships were disfavored or the exception, instead clarifying that the department is free to require the imposition of independent monitors whenever appropriate.

DOJ's most recent revisions build upon these 2021 changes and then some.

On individual accountability, DOJ reiterated that going after individuals who commit and profit from corporate crime is its top priority. In order to facilitate this, DOJ intends to require cooperating companies to come forward voluntarily with important evidence more quickly and regardless of whether DOJ has yet issued a request that would call for the production of such evidence. As the Deputy Attorney General put it, "speed is of the essence." To that end, under the newly announced revisions, undue or intentional delay in producing information or documents - and particularly those that show individual culpability - will result in a reduction or flat denial of cooperation credit. Moreover, Department...

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