In October 2021, Deputy Attorney General Lisa Monaco issued a memorandum to the U.S. Department of Justice (DOJ) entitled Corporate Crime Advisory Group, and Initial Revisions to Corporate Criminal Enforcement Policies. This memorandum outlined revisions to the DOJ’s existing corporate criminal enforcement policies and practices.
Moving forward, the DOJ will no longer limit a corporation’s record of past misconduct to solely prior misconduct similar to the conduct that is under investigation. Rather, the DOJ will now consider all prior misconduct within the history of the corporation. The list of misconduct that is recommended to be considered includes that found during “any prior domestic or foreign criminal, civil, or regulatory enforcement actions against it, including any such actions against the target company's parent, divisions, affiliates, subsidiaries, and other entities within the corporate family.” Additionally, the DOJ will now focus on the individualization of wrongdoing within a corporation. If a corporation wants to cooperate with the DOJ, it will be required to identify all individuals responsible for the misconduct, regardless of their position. Corporations will be required to disclose all nonprivileged information of those individuals involved both inside and outside of the company, without limiting disclosure to individuals the corporation deems to be substantially involved in the criminal conduct. Finally, the DOJ will now be in favor of imposing an independent corporate monitor when there is a demonstrated need for, and clear benefit to be derived from, a monitorship. Corporations should expect the DOJ to impose an independent monitor if its compliance program and controls are untested, ineffective, inadequately resourced, or not fully implemented at the time of a resolution. Practitioners defending corporations should review the entire memorandum and be aware of these changes as it will influence how corporations are investigated, charged, and what resolutions will be available to them in cases.
