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A Critical Examination of the ABA's 37th Annual White Collar Institute: Balancing Enforcement Goals and Legal Realities

Introduction

The American Bar Association's 37th Annual White Collar Institute recently concluded, leaving legal practitioners and industry experts with much to ponder. The conference served as a platform for government officials to outline their enforcement priorities for 2022 and beyond. However, it also sparked a dialogue among defense attorneys who questioned the feasibility and fairness of these ambitious goals. This article aims to dissect the key takeaways from the conference, shedding light on the evolving landscape of white-collar enforcement.

The Government's Stance: A Renewed Focus on Corporate Crime

Attorney General Merrick Garland and Assistant Attorney General of the Criminal Division, Kenneth Polite, were among the high-profile speakers at the event. Both emphasized the Department of Justice's (DOJ) commitment to cracking down on corporate misconduct. They argued that robust corporate enforcement is essential for maintaining public trust and upholding the rule of law. This sentiment was echoed by other DOJ officials, signaling a unified approach to tackling corporate crime.

The Antitrust Division: A Historical Shift

Deputy AAG Richard Powers and Principal Deputy AAG Doha Meki indicated that the DOJ's Antitrust Division is gearing up to charge companies with criminal violations under Section 2 of the Sherman Act. This marks a significant shift, as such charges have not been filed since the 1970s. The move suggests that anticompetitive monopolistic behavior is now squarely in the DOJ's crosshairs.

Individual Accountability: A Core Principle

The DOJ officials made it clear that their primary focus is on individuals who engage in corporate malfeasance. AG Garland emphasized that corporations act through individuals, and therefore, holding individuals accountable is crucial. AAG Polite reiterated that corporations must disclose all relevant, non-privileged information about individual misconduct to receive any cooperation credit.

Resource Augmentation: A Strategic Move

AG Garland highlighted the DOJ's efforts to bolster its resources by hiring additional staff and investing in new technologies. He also mentioned the role of "force-multipliers," such as Task Force KleptoCapture, in enhancing the Department's capabilities. The DOJ's collaboration with foreign law enforcement agencies was termed a "gamechanger" for 2022 by David Last, Chief of the DOJ's FCPA Unit.

The Defense Bar's Perspective: A Call for Caution

While the government's renewed focus on enforcement was evident, the defense bar expressed reservations. Kathryn Ruemmler, General Counsel of Goldman Sachs, questioned the DOJ's increasing reliance on independent monitors in criminal settlements. She warned that such a move could blur the lines between regulation and law enforcement. Ruemmler also expressed concerns that the DOJ's aggressive stance might lead to questionable prosecutions.

Conclusion: A Delicate Balance

The ABA's 37th Annual White Collar Institute served as a microcosm of the broader debate surrounding white-collar enforcement. While the government is keen on ramping up its efforts, the defense bar urges caution and due diligence. As we move forward, it will be interesting to see how these contrasting viewpoints shape the future of white-collar enforcement.

For those navigating the complexities of white-collar law and seeking expert legal counsel, Lucosky Brookman LLP stands ready to assist.