On October 28, 2021, during a keynote address at the American Bar Association’s 36th National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco announced that the Department of Justice (DOJ) was taking three new actions to strengthen how it responds to corporate crime, and was also studying certain topics in connection with additional future potential changes.
First, Monaco stated that—to “augment” the DOJ’s efforts to ensure individual accountability for corporate misconduct—she had directed that the DOJ restore its prior guidance requiring that, to be eligible for any cooperation credit, companies must provide the DOJ with all non-privileged information about individuals involved in or responsible for the misconduct at issue in the underlying matter. Monaco made clear that companies could no longer limit disclosures to individuals that the company determined to be “substantially involved” in the misconduct, and must instead include even individuals with a peripheral involvement in the misconduct, regardless of their position, status, or seniority.
Second, Monaco announced that the DOJ would take into account a company’s full historical criminal, civil, and regulatory record when deciding on an appropriate resolution for a company that is under DOJ investigation. In that regard, Monaco explained that—in a scenario where a company was under investigation for a potential violation of the US Foreign Corrupt Practices Act (FCPA)—the DOJ would consider not just past FCPA violations by the company, but also whether the company had previously “run afoul of the Tax Division, the Environment and Natural Resources Division, the money laundering sections, the U.S. Attorney’s Offices, and so on.” In addition, the DOJ would consider prior prosecutions by other U.S. federal or state authorities, as well as by foreign enforcement authorities. Monaco explained that taking this broader view of historical misconduct would harmonize the DOJ’s treatment of individual and corporate criminal histories, and ensure that the DOJ did not overlook important prior conduct by a company when determining an appropriate resolution for current misconduct.
Third, Monaco explained that, to the extent any prior DOJ guidance had suggested that corporate monitors were disfavored, she was rescinding that guidance. Monaco made clear that, moving forward, the DOJ would require the imposition of independent monitors whenever it was appropriate to do so to satisfy the DOJ that a company was living up to its settlement obligations.
As for the topics under study by the DOJ, Monaco stated that the DOJ would be looking into (i) whether the DOJ should treat companies differently when they had been repeatedly investigated by the DOJ (including, for example, whether pretrial diversion resolutions such as non-prosecution agreements (NPAs) or deferred prosecution agreements (DPAs) were still appropriate for certain recidivist companies), as well as (ii) whether companies subject to NPAs or DPAs took their obligations seriously enough. She announced that the DOJ had formed a Corporate Crime Advisory Group to study these and other issues.