During remarks made at the ABA’s 36th National Institute on White Collar Crime on October 28, Deputy Attorney General Lisa O. Monaco announced new guidance on corporate criminal enforcement by the Department of Justice, including a renewed emphasis on the prosecution of individuals – describing it as “this department’s first priority in corporate criminal matters.” Deputy AG Monaco noted the changes that had occurred since she began her career as a federal prosecutor. She noted the national security concerns that are now often associated with corporate crime, including sanctions, export controls, and cybersecurity. She also noted the increased use of big data in conducting corporate criminal investigations. Finally, she discussed the use of emerging technologies by criminal actors to target and exploit victims.
Deputy AG Monaco recognized the difficulties involved with brining criminal enforcement actions against corporate executives, even going so far as to acknowledge the probability of trial losses for the Department. Still, she emphasized the importance of bringing these cases and encouraged federal prosecutors not to be deterred by the risk of losing the cases at trial. In an effort to effectuate this priority, Deputy AG Monaco said that Department resources would be “surged” to prosecutors, including a “new squad of FBI agents  embedded in the Department’s Criminal Fraud Section.” The remarks continued with a statement concerning corporate culture, signaling the importance of “tone at the top” in corporate criminal enforcement actions. Deputy AG Monaco argued that strong compliance programs serve shareholders more meaningfully than cost-savings and increased profit from lax compliance programs.
Deputy AG Monaco then announced various changes being made within the Department of Justice. First, she announced the restoration of prior guidance that, in order to be eligible for cooperation credit, corporate entities must provide the government all non-privileged information concerning individuals involved in misconduct, regardless of their position, eliminating the “substantially involved” standard. Next, she announced that all prior misconduct would be evaluated in determining resolution with a company, even if prior misconduct is not similar to the conduct relevant to the present enforcement action or if the prior misconduct was prosecuted by a different federal agency, a state government, or the government of a foreign nation. Finally, Deputy AG Monaco announced that corporate monitors are an important part of the Department’s enforcement strategy moving forward, and any guidance discouraging the use of monitors was rescinded.
She went on to say that DOJ would be exploring whether to discourage the use of DPAs and NPAs for companies that she called “repeat offenders” – companies that are the subject of repeated investigations by multiple sections or divisions. This will be especially concerning for corporate entities that operate in several industries across various geographic regions. Deputy AG Monaco indicated her concern that companies merely viewed the agreements and associated fines as the cost of doing business rather than a meaningful tool to incentivize compliant behavior. She also announced an emphasis on punishing corporations that violate NPAs and DPAs. Finally, she announced the formation of a “Corporate Crime Advisory Group,” which would include representatives from throughout the Department and would have “a broad mandate and will consult broadly.” She concluded her remarks by encouraging companies to review their compliance programs and take into account the guidance she had issued.
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