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July 15, 2023 Feature

DOJ's Focus on Corporate Criminal Enforcement Continues Under Biden Administration

Justin D. Weitz, Sandra L. Moser, and Erica A. Jaffe

In recent years, the US Department of Justice (DOJ) has sharpened its focus on holding both companies and individual corporate executives accountable for criminal conduct. While DOJ has brought corporate criminal cases in a number of subject matter areas, from material support for terrorism to market manipulation to antitrust violations, corruption offenses continue to be a major part of the DOJ’s corporate enforcement strategy. This trend is not limited to the United States; other countries are increasingly holding companies accountable for corruption offenses. This article highlights recent US corporate criminal enforcement trends, examining the current policy landscape and lessons learned from recent Foreign Corrupt Practices Act (FCPA) enforcement actions.

Policy Landscape

The Biden administration has emphatically stated that prosecution of corruption is a top priority. On June 3, 2021, the White House issued a memorandum that declared that “countering corruption [is] a core United States national security interest.” The memorandum outlines this administration’s view that

[c]orruption threatens United States national security, economic equity, global anti-poverty and development efforts, and democracy itself. But by effectively preventing and countering corruption and demonstrating the advantages of transparent and accountable governance, we can secure a critical advantage for the United States and other democracies.

White House, Memorandum on Establishing the Fight Against Corruption as a Core United States National Security Interest (June 3, 2021). The White House directed an unprecedented interagency focus on combating global corruption and signaled increased funding for these efforts.

The DOJ has, through recent policy statements and enforcement efforts, demonstrated this commitment in action. Despite the aftershocks associated with the global pandemic, which complicated international investigations, the DOJ has sustained aggressive enforcement efforts against both corporations and individuals, as discussed in greater depth below.

Since June 2021, the DOJ has made multiple policy pronouncements and changes to policy, demonstrating a focus on certain key themes: individual accountability, the role of compliance in detection and prevention of corruption and other corporate offenses, and incentives for companies to disclose misconduct and cooperate with investigations. DOJ has also noted the drawbacks of a failure to cooperate or improve compliance programs, with the potential imposition of independent compliance monitors looming as a consequence for corporations that fail to meet DOJ’s high expectations.

The First Signal of a More Aggressive Approach to Corporate Crime

DOJ’s first significant announcement vis-à-vis corporate crime came on October 28, 2021, when Deputy Attorney General Lisa Monaco described important changes to the DOJ’s corporate criminal enforcement policies at the ABA’s 36th National Institute on White Collar Crime. See Press Release, US Dep’t of Just., Remarks as Prepared for Delivery, Deputy Attorney General Lisa O. Monaco Gives Keynote Address at ABA’s 36th National Institute on White Collar Crime (Oct. 28, 2021). Consistent with prior statements about the importance of holding individuals accountable, Monaco reaffirmed that “[a]ccountability starts with the individuals responsible for criminal conduct.” She also repeatedly emphasized the need for companies to take proactive compliance measures. Monaco issued a warning to companies that the DOJ’s statements about the importance of compliance are not just posturing; she said that a company that “thumbs its nose at compliance” by failing to proactively implement compliance functions will be making a “costly omission.”

Against this backdrop, three immediate actions the DOJ intended to take to target corporate crime were announced:

  1. Individual accountability: DOJ restored prior guidance issued by former Deputy Attorney General Sally Yates in her September 9, 2015, “Individual Accountability for Corporate Wrongdoing” Memorandum. The Yates Memo established that eligibility for cooperation credit hinges on companies providing the DOJ with all nonprivileged information about individuals involved in, or responsible for, the misconduct at issue—squarely fitting with the DOJ’s intention to hold individuals accountable for their role in corporate misconduct.
  2. Prior misconduct: DOJ will now consider all historical “misconduct” (in quotations, as the term was left undefined) of a company when deciding what resolution to recommend in a criminal investigation.
  3. Corporate monitors: Finally, to the extent prior guidance indicated a presumption against corporate monitors in recent years, such guidance was being rolled back and prosecutors would be able to impose monitors where they deem appropriate.

Increasing Focus on Corporate Compliance and Empowering Chief Compliance Officers

In March and May 2022, DOJ issued additional policy guidance intended to empower chief compliance officers (CCOs) and incentivize companies to focus on their corporate compliance efforts. On March 25, 2022, Assistant Attorney General Kenneth Polite provided details regarding the DOJ’s expectations for corporate compliance programs and how those programs will be assessed. See Press Release, US Dep’t of Just., Remarks as Prepared for Delivery, Assistant Attorney General Kenneth A. Polite Jr. Delivers Remarks at NYU Law’s Program on Corporate Compliance and Enforcement (Mar. 25, 2022). Consistent with prior guidance, Polite reaffirmed that companies are expected to implement compliance programs that (1) are well designed, (2) are adequately resourced and empowered to function effectively, and (3) work in practice.

Polite, a former CCO himself, noted that DOJ would “like to see the Chief Compliance Officer leading the compliance presentation [to DOJ] and demonstrating knowledge and ownership of the compliance program,” adding that “[o]ther senior management should also participate, taking ownership of their role in the compliance program and demonstrating commitment to compliance.” To that end, Polite announced DOJ initiatives aimed at empowering CCOs and promoting organizational commitment to compliance:

  1. Prosecutors were instructed to consider requiring chief executive officers and chief compliance officers to certify the (1) accuracy of annual reports submitted pursuant to corporate resolutions and (2) that their compliance program is reasonably designed and implemented prior to releasing the company from its obligations under a resolution agreement.
  2. The Fraud Section’s former Strategy, Policy, and Enforcement Unit was “revamped” into the newly named Corporate Enforcement, Compliance, and Policy Unit. Polite promised that the new unit would include new management and former defense lawyers with experience in compliance, monitorships, and corporate enforcement.

Two months later, on May 26, Monaco announced a new policy requiring CCOs to sign off on certain agreements with DOJ. This policy cited the certifications already required of public company CEOs and CFOs with regard to the accuracy of periodic financial statements. When announcing the policy, Monaco stated the certification was meant to “empower” the CCO, to ensure that the CCOs are “in the room” and reporting to the board directly about “what has or has not gone on in the course of fulfilling the company’s obligations,” and to promote the concept that “the business is taking ownership of its role in the compliance program and the Head of Compliance receives all relevant compliance-related information and can voice any concerns prior to certification.”

Changes to Corporate Crime Policy

September 2022 saw significant updates to DOJ’s corporate criminal enforcement policies intended to give effect to the tougher-on-corporate-crime approach announced in 2021. In a September 15, 2022, memorandum and accompanying speech, Monaco explained the key policy changes intended to incentivize corporations and business entities to voluntarily self-disclose potential wrongdoing. See Memorandum, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (Sept. 15, 2022); Press Release, US Dep’t of Just., Remarks as Prepared for Delivery, Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement (Sept. 15, 2022). The key focus areas, building on earlier pronouncements, included:

  1. Individual accountability. Consistent with prior statements, it was emphasized that individual accountability remains the DOJ’s “top priority” and that the DOJ is committed to “do more and move faster.” The DOJ’s new policy incorporates the Yates Memo’s message on individual accountability while placing additional emphasis on the speed of disclosure by requiring cooperating companies to come forward more quickly with evidence of individual wrongdoing.
  2. Prior misconduct. It was also announced that the DOJ would levy harsher penalties on corporate recidivists. Monaco set forth criteria explaining how DOJ would evaluate past corporate misconduct, explaining that DOJ would afford the most weight to US criminal resolutions and wrongdoing involving the same personnel, root causes, or types of misconduct. Dated conduct—defined as criminal violations that are more than 10 years old or civil/regulatory violations that are more than five years old—would be afforded less weight going forward.
  3. Voluntary self-disclosure. Monaco strongly encouraged companies to voluntarily self-disclose any misconduct. She stated that absent aggravating factors, DOJ would not seek a guilty plea for misconduct that is voluntarily disclosed and remediated, and promised that individual DOJ components would announce more detailed policies (some of which have been released as of publication and are discussed below).
  4. Monitorships. Consistent with Monaco’s 2021 statements, DOJ rejected the existence of a presumption against the use of monitors; instead, prosecutors have been instructed to evaluate the need for a monitor on a case-by-case basis. Monaco outlined a set of factors to aid prosecutors in determining whether a monitor is required, with emphasis on the importance of voluntary disclosure and effectiveness of a corporate compliance program.
  5. Compensation. DOJ’s evaluations of corporate compliance programs will now take into account whether “compensation systems reward compliance and impose financial sanctions on employees, executives, or directors whose direct or supervisory actions or omissions contributed to criminal conduct.”

Changes to the DOJ Criminal Division’s Corporate Enforcement Policy

In remarks delivered on January 17, 2023, Polite announced the first significant changes to the DOJ Criminal Division’s Corporate Enforcement Policy (CEP) since the CEP was initially announced in 2017. See Press Release, US Dep’t of Just., Assistant Attorney General Kenneth A. Polite, Jr. Delivers Remarks on Revisions to the Criminal Division’s Corporate Enforcement Policy (Jan. 17, 2023). The revised CEP provides guidance to prosecutors in the Criminal Division—which includes the Fraud Section (home to the FCPA Unit) and the Money Laundering and Asset Recovery Section—for how to assess and treat corporate offenders, with a focus on incentivizing voluntary self-disclosure of wrongdoing and cooperation with DOJ investigations.

In recognition of the importance of voluntary self-disclosure to DOJ enforcement efforts, the revised CEP seeks to provide an incentive for companies, even where aggravating circumstances exist. US Dep’t of Just., Criminal Div., Corporate Enforcement and Voluntary Self-Disclosure Policy § 9-47.120. The revisions state that a company may still receive a declination if the company can demonstrate that it has met each of the following three factors:

  1. The voluntary self-disclosure was made immediately upon the company becoming aware of the allegation of misconduct.
  2. At the time of the misconduct and the disclosure, the company had an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the company’s voluntary self-disclosure.
  3. The company provided extraordinary cooperation with the DOJ’s investigation and undertook extraordinary remediation.

See id. The revised CEP also increases the maximum potential reduction off the low end of the US Sentencing Guidelines fine range, relevant for when declination is not on the table—up to 75 percent off the low end if all the above-listed factors are met, and up to 50 percent off the low end even in the absence of voluntary self-disclosure, so long as other factors are met.

Voluntary Self-Disclosure Policy

Following changes to the CEP, DOJ announced a new Voluntary Self-Disclosure Policy on February 22, 2023. See US Attorneys’ Offices, Voluntary Self-Disclosure Policy. The policy standardizes the definition of what it means to voluntarily self-disclose, giving companies greater consistency and predictability of the benefits—and consequences—of self-disclosure. The policy outlines that the DOJ expects companies to meet a high bar to qualify as having voluntarily self-disclosed misconduct, with three key aspects:

  1. Voluntary disclosure. A disclosure is not voluntary if it is made based on a preexisting obligation, including a regulation, contract, or prior resolution, such as a non-prosecution or deferred prosecution agreement.
  2. Timely disclosure. The disclosure must be made fairly quickly—including “prior to an imminent threat of disclosure or government investigation,” prior to the public disclosure of the conduct or the conduct otherwise being made known to the government, and “within a reasonably prompt time after the company” becomes aware of the misconduct.
  3. Substantive disclosure. The disclosure “must include all relevant facts concerning the misconduct” that the company is aware of at the time. The company does not have to know all relevant facts at the time of disclosure, but it should note this when making the disclosure and provide factual updates as investigative efforts continue.

Compensation Clawback Pilot Program and Changes to the Corporate Compliance Program Evaluation Criteria

On the heels of the new Voluntary Self-Disclosure Policy, DOJ announced another set of policy updates targeted at holding individual wrongdoers accountable and incentivizing companies to invest in their corporate compliance programs. On March 2, 2023, Monaco unveiled the launch of a pilot program on compensation incentives and clawbacks during a speech at the ABA’s White Collar Crime Conference in Miami. See Press Release, US Dep’t of Just., Remarks as Prepared for Delivery, Deputy Attorney General Lisa Monaco Delivers Remarks at American Bar Association National Institute on White Collar Crime (Mar. 2, 2023); Memorandum, The Criminal Division’s Pilot Program Regarding Compensation Incentives and Clawbacks (Mar. 3, 2023). The next day, Polite provided more details about the pilot program, and the Criminal Division released an updated version of its Evaluation of Corporate Compliance Programs (ECCP) guidance, with additions focused on whether a company’s compensation and bonus program are designed to incentivize compliance (in addition to other revisions, such as regarding expectations around use and preservation by companies of third-party messaging used by employees). See Press Release, US Dep’t of Just., Remarks as Prepared for Delivery, Assistant Attorney General Kenneth A. Polite, Jr. Delivers Keynote at the ABA’s 38th Annual National Institute on White Collar Crime (Mar. 3, 2023); US Dep’t of Just., Criminal Div., Evaluation of Corporate Compliance Programs (updated Mar. 2023).

The pilot program has two components:

  1. Every corporate resolution entered into by the Criminal Division will require the resolving company to implement criteria related to compliance in its compensation and bonus system.
  2. Under this new pilot program, companies may be able to reduce criminal fines by attempting in good faith to claw back compensation from individual wrongdoers. At the outset of the resolution, the resolving company will pay the applicable fine, minus a reserved credit equaling the amount of compensation the company is attempting to claw back from culpable executives and employees.

This “good faith” attempt to claw back compensation is significant. Even if a company is unsuccessful in recouping these funds, as long as the company has initiated the process to recoup such compensation before the time of resolution, an additional fine reduction may be warranted.

Policy in Practice

Corporate Compliance Programs Matter—Tremendously

The DOJ’s multiple pronouncements in recent years have fostered a clear message: Having an effective corporate compliance program is a baseline expectation of prosecutors, and companies that fail to invest in a meaningful compliance program will be significantly disadvantaged in any prosecutorial process. It therefore behooves companies to proactively invest in their compliance programs—not only to guard against misconduct, but so that if a company finds itself caught in the crosshairs of an enforcement action, it is better positioned for a favorable resolution.

Beyond policy statements, the DOJ has gone a step further to outline detailed guidance on what it expects to see in an effective compliance program. The Evaluation of Corporate Compliance Programs guidance, last updated March 2023, provides 21 pages of insight into what, specifically, prosecutors evaluate when determining if a compliance program is well designed, adequately resourced, and works in practice. See U.S. Dep’t of Just., Criminal Div., Evaluation of Corporate Compliance Programs (updated Mar. 2023). For example, at a minimum, companies should prioritize promotion of a culture of compliance, development of policies and procedures, implementation of appropriate records management to ensure that relevant information is accessible and maintained should there be an investigation, execution of period risk-based review, provision of compliance training, implementation of enforcement and disciplinary measures, and institution of compliance monitoring and testing. DOJ recognizes that “one size does not fit all” for compliance programs, and therefore the Evaluation of Corporate Compliance Programs guidance is agnostic to company size or industry, and rather has common best practices principals that can be scaled and implemented accordingly. Companies should ensure they have closely reviewed this guidance and assess their compliance program’s adequacy and effectiveness against the framework of questions in that guidance.

In every recent criminal resolution, the DOJ continues to place significant emphasis on corporate compliance programs—or the lack thereof—as a key factor driving the form of resolution and monitor imposition. For example, the resolution with Gol Linhas Aéreas Inteligentes notes that, based on the company’s remediation efforts “and the state of its compliance program,” no independent compliance monitor was required. See Deferred Prosecution Agreement, United States v. Gol Linhas Aéreas Inteligentes S.A. (D. Md. Sept. 16, 2022). The Deferred Prosecution Agreement details the types of remediation measures taken that significantly enhanced the corporate compliance program, including:

(i) conducting a comprehensive risk assessment; (ii) redesigning its entire anti-corruption compliance program; (iii) forming a compliance department and hiring a new chief compliance officer to lead it; (iv) re-evaluating and supplementing its anti-corruption policies and procedures, such as its relationship with third-party vendors and suppliers; and (v) terminating its relationships with third parties involved in the misconduct.

Based on this remediation and its full cooperation, Gol Linhas received the maximum (at the time) reduction off the bottom of the applicable Sentencing Guidelines fine range.

Recent policy statements also make it clear the DOJ wants to ensure chief compliance officers have adequate resources and stature within their organization to be effective. Although industry response has been wary of what the CCO certification announced in May 2022 actually means in practice for CCOs, the DOJ has reiterated that the certifications are meant to “empower” CCOs and ensure they have a “seat at the table”—not punish them.

It appears these certifications are here to stay: Each criminal FCPA resolution that has followed the announcement of this policy, starting with the Glencore Plea Agreement, has included a CCO certification. In May 2022, Glencore, a Swiss multinational commodity trading and mining company, paid $700 million to resolve criminal FCPA offenses stemming from alleged widespread, pervasive bribery that was sanctioned by senior leadership. The company also entered into criminal and civil resolutions related to market manipulation, and separate anti-corruption resolutions with Brazil and UK authorities. See Plea Agreement, United States v. Glencore Int’l A.G. (May 24, 2022). As used in the Glencore resolution (see Attachment H of the Glencore resolution papers), and all following resolutions, the language of the certification requires the CCO and CEO to sign under penalty of perjury and attest that the company has complied with resolution requirements outlining the minimum components of an effective corporate compliance program. The certification also requires the CCO and CEO to certify that the company’s “compliance program is reasonably designed to detect and prevent violations” of the FCPA and other anticorruption laws.

It remains to be seen whether the requirement of this certification will incentivize companies and their boards to resource, empower, and elevate CCOs within their organizations, in advance of any misconduct occurring or being discovered. The certification only requires an attestation that the compliance program is “reasonably designed”—not “effective.” While this undoubtedly provides less heartburn to the CCOs required to sign this certification, it is unclear if the certification has enough teeth to motivate companies not yet facing an enforcement action to change their prioritization of the importance of compliance.

Individual Accountability Is Here to Stay

As discussed above, the DOJ has repeatedly stated in public policy announcements its intention to focus on individual accountability. In her above-referenced October 2021 speech at the ABA’s National Institute on White Collar Crime, Monaco remarked that:

cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases. But I have and will continue to make clear to our prosecutors that, as long as we act consistent with the Principles of Federal Prosecution, the fear of losing should not deter them. … [W]e will urge prosecutors to be bold in holding accountable those who commit criminal conduct.

This statement was and remains significant because it signaled the DOJ’s prioritization of individual accountability over “the fear of losing,” as long as prosecutors act consistently with the Principles of Federal Prosecution. And Monaco’s most recent statements in connection with the announcement of the compensation clawback pilot program further underscore the DOJ’s focus. As she explained: “our goal is simple: to shift the burden of corporate crime away from shareholders who frequently play no role in the misconduct and onto those who are directly responsible.” She reiterated DOJ’s focus on holding individual wrongdoers accountable, “no matter how prominent or powerful they are.”

The most recent enforcement results emphasize that these and similar remarks were not just lip service. The Fraud Section 2022 Year in Review highlights a significant achievement in the vein of individual accountability: its highest number of trials and trial convictions ever—51 trials and 56 trial convictions. Also noteworthy is the Section’s success rate of securing convictions at trial—78 percent—with 72 individuals tried and 56 convicted at trial. The Fraud Section also secured more individual convictions than in years past. In 2022, 342 individuals were convicted, an increase over the 329 individuals convicted in 2021. See US Dep’t of Just., Criminal Div., Fraud Sec., Year in Review (2022).

These increases were not just due to adjustment to the “new normal” as the world emerges from the global pandemic and resumption of court-based activities. The 2022 trial conviction figures are a meaningful increase even when compared to pre-pandemic 2019 levels, when the Fraud Section secured 37 trial convictions. The same goes for individual convictions—convictions in 2022 exceeded 2019 levels by 34%. These numbers are noteworthy and—coupled with increased budgetary allotments for prosecutors and staff—illustrate a continued focus on individual accountability.

Monitors: Not the 2022 Trend Many Practitioners Expected

The year 2021 ended with two corporate resolutions that both imposed independent monitors: Balfour Beatty Communities (BBC) and NatWest. See Plea Agreement, United States v. Balfour Beatty Cmty., LLC (D.C. 2021); Plea Agreement, United States v. NatWest Markets PLC (D. Conn. 2021). Only two months prior to both of these guilty pleas, Monaco had announced the policy change with regard to the use of corporate monitors, clarifying that the department is free to require the imposition of independent monitors whenever it is appropriate to do so, and that imposition of a monitor should not be viewed as the exception to the rule.

Following these two resolutions, it seemed like 2022 was destined to bring even more resolutions with monitors imposed. However, in 2022, only two corporate resolutions required monitors: Stericycle and Glencore. In April 2022, Stericycle, an international waste management company, entered into a Deferred Prosecution Agreement and agreed to pay over $84 million in a coordinated foreign bribery resolution with the US and Brazil. See Deferred Prosecution Agreement, United States v. Stericycle, Inc. (S.D. Fl 2022). The following month, Glencore, as discussed above, paid $700 million to DOJ to resolve criminal FCPA offenses. See Glencore Plea Agreement, supra.

As of four months into 2023—the time of writing of this article—there has been one additional case development regarding monitors. In March 2023, telecommunications company Ericsson, which entered into a Deferred Prosecution Agreement in 2019, announced that the DOJ had notified it that the company had breached the DPA by violating the agreement’s cooperation and disclosure provisions. In addition to a $200 million criminal penalty and guilty plea to the original charges of the 2019 DPA, Ericsson also agreed to a one-year extension of its independent compliance monitor. See Press Release, Dep’t of Just., Ericsson to Plead Guilty and Pay over $206M Following Breach of 2019 FCPA Deferred Prosecution Agreement (Mar. 2, 2023).

While these matters varied in terms of scope, industry, and conduct, in the cases of all five resolutions—Stericycle, Glencore, BBC, NatWest, and the original 2019 Ericsson DPA—the resolution papers shed some light on why certain companies are subject to the imposition of a monitor. Each agreement acknowledged that while each company was making progress to remediate issues within its compliance program, these compliance enhancements were not “fully implemented or tested” and therefore could not demonstrate that they would prevent and detect similar misconduct in the future, as an effective compliance program should be able to do. The Ericsson matter serves as a good reminder: Remediation and changing a corporate culture are a significant lift, and one that DOJ will keep close tabs on following a resolution.

It is hard to predict where DOJ will go in 2023 with its use of monitors. While the trend line did not increase in 2022 as many practitioners expected, it may simply be a numbers game. In recent years, the number of corporate resolutions has declined annually: The Fraud Section completed 15 corporate resolutions in 2019, 13 in 2020, eight in 2021, and seven in 2022. In other words, there was not as large of a sample size in 2022 to truly test whether the use of monitors will increase. Or it may be that companies that find themselves facing an enforcement action realize it is paramount they prioritize the remediation of their compliance program—thus reducing the chances of having a monitor imposed.

Cooperation Is Key

The recent DOJ policy statements make clear that when companies face an enforcement action, the degree of cooperation they provide to prosecutors is judged according to a high standard. As part of his remarks announcing the January 2023 changes to the CEP, Polite noted that companies must provide “extraordinary” cooperation and remediation if they hope to qualify for a declination in the face of aggravating circumstances, under the new policy. “Extraordinary” goes above and beyond the expectations of “full” cooperation and remediation as outlined in the prior CEP—and the expectations for “full” cooperation are not a low bar. As Polite remarked, to meet the “extraordinary” threshold, the cooperation provided must not be “just run of the mill, or even gold-standard cooperation, but truly extraordinary.”

There is no bright line in the revised policy for when cooperation goes from just “full” to “extraordinary,” but practitioners may be able to take some lessons from the December 2022 resolution with ABB, a Swiss technology company listed on U.S. exchange. See Deferred Prosecution Agreement, United States v. ABB Ltd. (E.D. Va. 2022). Despite a history of corporate misconduct—with the December 2022 resolution, ABB became the first company to resolve an FCPA enforcement action for a third time—the company was able to secure a deferred prosecution agreement to resolve the charges against it. The parent company’s actions likely mitigated consequences with DOJ, noting that while ABB did not receive voluntary disclosure credit, ABB, “within a very short time of learning of the misconduct,” contacted DOJ and engaged in extensive remediation, including hiring of compliance personnel and conducting root-cause analysis.

Perhaps most significantly, DOJ noted that “the Company received full credit for its extraordinary cooperation” (emphasis added). The papers explained the extent of this “extraordinary” cooperation:

the Company received full credit for its extraordinary cooperation . . . by, among other things: (i) promptly providing information obtained through its internal investigation, which allowed the Offices to preserve and obtain evidence as part of their own independent investigation; (ii) making regular and detailed factual presentations to the Offices; (iii) voluntarily making foreign-based employees available for interviews in the United States; (iv) producing relevant documents located outside the United States to the Offices in way that did not implicate foreign data privacy laws; and (v) collecting, analyzing, and organizing voluminous evidence and information that it provided to the Offices, including the translation of certain foreign language documents.

The SEC Order sheds further detail on what it meant that ABB “promptly provided information”—the SEC Order states that “ABB’s cooperation included real-time sharing of facts learned during its own internal investigation” (emphasis added). See SEC Order, In re ABB Ltd. (2022). While “promptly providing” information is a significant commitment to cooperation, “real-time sharing” is a whole other level. Providing information at this speed means defense attorneys may not have time to properly analyze the information and consider how it fits within overall defense strategy. This truly does seem like “extraordinary” cooperation.

Given the risks associated with trying to achieve “extraordinary cooperation” credit—coupled with the opaque guidance from DOJ on what constitutes “extraordinary” versus “full” cooperation—companies and their boards may not find this incentive particularly appealing. Future 2023 resolutions may shed more light on examples of what it means to be “extraordinary,” like ABB and real-time sharing.


DOJ has, through a series of pronouncements from 2021 to the present, emphasized its commitment to improved corporate compliance programs and individual accountability. Looking forward to 2023 and beyond, practitioners should expect to see a continued increase in prosecution activity in the anti-corruption space.

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Justin D. Weitz

Morgan, Lewis & Bockius LLP

Justin D. Weitz is a partner at Morgan, Lewis & Bockius LLP in Washington, DC, after spending nearly a decade in the US Department of Justice’s Criminal Division.

Sandra L. Moser

Morgan, Lewis & Bockius LLP

Sandra L. Moser is a partner at Morgan, Lewis & Bockius LLP in Washington, DC, and former chief of the US Department of Justice’s Fraud Section in Washington, DC, which has exclusive jurisdiction over the Foreign Corrupt Practices Act and routinely handles many of the world’s most significant economic crime cases.

Erica A. Jaffe

Morgan, Lewis & Bockius LLP

Erica A. Jaffe is an associate at Morgan, Lewis & Bockius in Philadelphia, Pennsylvania.