US DOJ Announces Major Policy Updates On Individual Accountability, Recidivism, Monitorships, And Corporate Culture

• Published date: 26 September 2022
• Subject Matter: Corporate/Commercial Law, Criminal Law, Compliance, Corporate and Company Law, Corporate Crime
• Law Firm: Mayer Brown
• Author: Jason Linder, Gina M. Parlovecchio, J. Gregory Deis, Glen A. Kopp and Juliet Gunev

On Thursday, September 15, 2022, Deputy Attorney General (DAG) Lisa Monaco announced a multi-prong clarification and amplification of her October 2021 policy pronouncements (October DOJ Memorandum) that will have wide-ranging impacts on federal criminal prosecutions of corporations and individuals.

Background

Last October, DAG Monaco announced broad shifts in Department of Justice ("DOJ" or "Department") white collar enforcement priorities and policies, including on issues of individual accountability, corporate recidivism, and corporate monitors and how the Department would approach companies operating under a criminal deferred or non-prosecution agreement. She also announced the formation of a Corporate Crime Advisory Group (CAAG) to seek input from a broad range of viewpoints, including from a white collar defense bar group led by one of this Legal Update's authors.

Six Topics

DAG Monaco's announcement last week and the accompanying memorandum (September DOJ Memorandum) address six key topics:

1. Individual accountability: Speed is of the essence. The September DOJ Memorandum reiterates individual accountability as the Department's "first priority." As DAG Monaco noted in her related announcement, in individual prosecutions, "speed is of the essence." To receive full cooperation credit, the Department expects companies to identify and share relevant non-privileged facts about individual misconduct swiftly and without delay. Prosecutors, in turn, will aim to complete investigations into individuals, and seek any related criminal charges, prior to or simultaneously with any related corporate resolution. Related updates are intended to "push prosecutors and corporate counsel alike to feel they are 'on the clock' to expedite investigations, particularly as to culpable individuals."

2. Recidivism: DOJ provides welcome clarity, but uncertainty remains. The Department's commitment to consider a company's global criminal, civil, and regulatory record when deciding on an appropriate resolution quickly became one of the most discussed aspects of the October 2021 policy updates. In responding to feedback, the latest guidance provides welcome clarity on a number of related points:

• The DOJ will place the greatest weight on prior US criminal resolutions, according comparatively less weight to domestic civil and regulatory matters and any foreign matters.
• Dated conduct'referred to as criminal resolutions more than 10 years old and civil or regulatory matters over five years old'will generally be accorded less weight.
• The nature of the misconduct and surrounding circumstances will be considered to help contextualize prior misconduct, including e.g., comparing the history of corporations in highly regulated...