On October 28, 2021, Deputy Attorney General Lisa Monaco announced in a speech to the American Bar Association’s National Institute on White Collar Crime “new actions that the department is taking today to strengthen the way we respond to corporate crime.”
Overly Cautious DOJ
In her speech, she criticized past efforts as being overly cautious and too afraid to lose cases. She indicated that if the Department of Justice (DOJ) acts in a manner consistent with its policies, “the government may lose some of those cases.”
Individual Accountability and Cooperating Companies
When faced with a criminal investigation, it is generally in the company’s interest to fully cooperate, even when that increases the threat of conviction of its officers or other employees. To be viewed as cooperating, the company must provide DOJ “with all non-privileged information about individuals involved in or responsible for the misconduct at issue. To be clear, a company must identify all individuals involved in the misconduct, regardless of their position, status, or seniority.” DOJ wants to determine if a particular individual is “substantially involved” in the misconduct and not leave that analysis to the company.
All Prior Misconduct Must Be Reviewed
When determining how to resolve a matter, DOJ considers the company’s compliance history. Going forward, DOJ will consider the company’s entire compliance history, not just matters similar to the conduct under investigation.
No Presumption against Corporate Monitors
To the extent prior DOJ policy considered appointment of an independent monitor (at the company’s expense) to be disfavored and used only in exceptional circumstances, that has changed. DOJ is “free to require the imposition of corporate monitors whenever it is appropriate.”
DOJ has published the text of the speech https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute