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DOJ Unveils Substantial Revisions to Corporate Criminal Enforcement Guidelines

On September 15, 2022, Deputy Attorney General Lisa Monaco disclosed a series of comprehensive updates to the Department of Justice's (DOJ) corporate criminal enforcement protocols. The alterations underscore the DOJ's heightened attention to specific "metrics" for gauging the efficacy of corporate compliance programs in making decisions about charging and resolving cases against companies. The announcement delineates new "metrics" that will be considered, such as clawback provisions in compensation structures, the use of non-disclosure agreements to suppress public revelations of criminal behavior, and the implementation of robust policies concerning personal devices and third-party messaging platforms. Additionally, the policy changes offer fresh insights into the appointment, selection, and oversight of corporate monitors.

Companies are advised to revisit and potentially revise their compliance policies in light of these new DOJ guidelines. The DOJ's recruitment of two former chief compliance officers for key roles signifies a clear message: the DOJ is intensifying its scrutiny of corporate compliance programs during the decision-making process for charges and resolutions.

The DOJ's Renewed Commitment to White-Collar Crime Enforcement

On September 15, 2022, Deputy Attorney General Lisa Monaco announced a set of sweeping changes to the DOJ's corporate criminal enforcement policies. These changes are the culmination of a year-long evaluation by the DOJ's Corporate Crime Advisory Group and aim to align with the Biden administration's focus on rigorous enforcement against both corporations and individuals. These new policies will be integrated into the Justice Manual and build upon previous guidelines and policy changes.

Voluntary Self-Disclosure and Cooperation Credit

The DOJ encourages companies to voluntarily disclose criminal conduct by offering various degrees of potential leniency. The new guidelines specify that, barring aggravating circumstances, companies that voluntarily disclose, fully cooperate, and adequately remediate will not be required to plead guilty. Moreover, no independent compliance monitor will be imposed if the company has an effective compliance program in place at the time of resolution.

Speed and Individual Accountability in Cooperation

The DOJ has reiterated its primary focus on individual accountability. Companies seeking cooperation credit must promptly disclose all pertinent non-privileged facts about individual misconduct. The DOJ expects companies to produce crucial documents or evidence in "real-time," thereby accelerating the pace of internal investigations.

Evaluating Corporate Compliance Programs

Prosecutors are mandated to assess the adequacy of a company's compliance program both at the time of the offense and when making charging decisions. New "metrics" for evaluation include:

• - Compensation Structures: Prosecutors will examine whether companies have clawback provisions that allow for retroactive disciplinary actions against current or former employees involved in criminal conduct.
• - Non-Disclosure Agreements: The use of such agreements to prevent public disclosure of criminal activities will be scrutinized.
• - Personal Devices and Third-Party Messaging Platforms: Companies must have effective policies to ensure that business-related electronic data and communications are preserved.

Corporate Monitors and Oversight

The DOJ aims for consistency in the appointment and supervision of independent corporate monitors. Companies are expected to have a publicly documented selection process for monitors, whose roles and responsibilities should be clearly defined.

History of Corporate Misconduct

The DOJ is less inclined to offer non-prosecution or deferred prosecution agreements to repeat offenders. Prosecutors must now seek approval from the Deputy Attorney General for such resolutions and consider the company's history of misconduct in their decisions.

Key Takeaways

1. The DOJ is doubling down on its commitment to aggressively enforce white-collar crimes.
2. Companies under DOJ investigation should anticipate thorough evaluations of their compliance programs.
3. Timely disclosure of all relevant facts about individual misconduct is crucial for full cooperation credit.
4. The decision to voluntarily disclose potential corporate misconduct to the DOJ is complex and should be made on a case-by-case basis, considering all relevant factors, including DOJ policy.

By revisiting and potentially updating their compliance programs in light of these new DOJ guidelines, companies can better position themselves for future interactions with the DOJ.