Generally, when determining whether to prosecute, the DOJ will consider the sufficiency of the evidence, likelihood of success at trial, probability of deterrence, rehabilitation, and other consequences of conviction, and the adequacy of non-criminal alternatives. The DOJ’s Principles of Federal Prosecution of Business Organizations enumerate factors that federal prosecutors should consider when determining whether to bring criminal charges against a corporation or other entity, including:
- nature and seriousness of the offense;
- pervasiveness of misconduct within the organization;
- history of similar wrongdoing;
- company’s timely voluntary disclosure and cooperation;
- effectiveness of the pre-existing compliance program;
- company’s remedial actions;
- collateral consequences of the wrongdoing;
- adequacy of prosecuting the responsible individuals; and
- adequacy of remedies such as civil or regulatory enforcement actions.1
On May 9, 2018, the DOJ announced its “Policy on Coordination of Corporate Resolution Penalties,” which instructed prosecutors in parallel or joint investigations to “coordinate with one another to avoid the unnecessary imposition of duplicative fines, penalties, and/or forfeiture against the company.”2 Under this policy, DOJ has afforded companies offsets against criminal penalties for amounts paid to the SEC, foreign authorities, and even civil litigants.
On April 2019, the DOJ issued an updated version of its Memorandum “Evaluation of Corporate Compliance Programs”, which sets forth specific factors and criteria that prosecutors should consider when determining whether, and to what extent, the company’s compliance program was effective at the time of the offense, and is effective at the time of a charging decision or resolution, for purposes of determining: (i) form of any resolution or prosecution; (ii) monetary penalty, if any; (iii) compliance obligations contained in any corporate criminal resolution (e.g, monitorship or reporting obligations).3
1 DOJ, Justice Manual 9-28.000.
2 Mem. from Rod J. Rosenstein, Deputy Att’y Gen., to Heads of Dep’t Components U.S. Attorneys 1 (May 9, 2018) (on file with DOJ), available here.
3 Memorandum, Evaluation of Corporate Compliance Programs (updated April 2019), at 1.