The Department of Justice ("DOJ" or "Department") has continued to make clear that white collar crime is a top priority of its enforcement efforts. On October 28, 2021, Deputy Attorney General ("DAG") Lisa Monaco issued a Department memorandum and discussed DOJ's corporate enforcement priorities in an address to the ABA's 36th National Institute on White Collar Crime. Consistent with DOJ's emphasis on white collar enforcement, DAG Monaco announced three changes in Department policy and the creation of a Corporate Crime Advisory Group.
First, DAG Monaco directed the Department to restore guidance that companies must provide all non-privileged information about all individuals involved in misconduct to be eligible for cooperation credit. Previously, companies could limit disclosures to only individuals they determined to be "substantially involved" in criminal misconduct. Under the new approach, companies will have to disclose all individuals involved in the potential wrongdoing, which DAG Monaco stated would allow DOJ to make its own determination about the relevance of information and culpability of involved individuals.
Second, DAG Monaco directed prosecutors to consider the full criminal, civil, and regulatory records of companies that are targets of criminal investigations, as well as their affiliates, rather than just the specific conduct at issue in that particular investigation. Looking at a company's overall record, she argued, "speaks directly to a company's overall commitment to compliance programs and the appropriate culture to disincentivize criminal activity."
And third, DAG Monaco announced the rescission of prior guidance suggesting that corporate monitors are disfavored or the exception. Instead, she announced that DOJ is encouraged to impose independent monitors where appropriate and that DOJ will study how to best select monitors.
DAG Monaco also made clear that these changes are only the first steps in the Department's commitment to combat corporate crime. In addition to these changes, she created a Corporate Crime Advisory Group that will consider a variety of topics, including whether non-prosecution agreements ("NPAs") and deferred prosecution agreements ("DPAs") are appropriate for companies that are repeat offenders and how to ensure that there are serious consequences for those companies that breach an NPA or DPA.
DAG Monaco's October 28 announcements were the latest developments in a busy month at DOJ. On October 6, she announced the formation of a new Civil Cyber-Fraud Initiative and National Cryptocurrency Enforcement Team. The Cyber-Fraud Initiative will leverage the False Claims Act to pursue cybersecurity-related fraud, while the Cryptocurrency Team will focus largely on virtual currency exchanges and money laundering actors. On October 5, Principal Associate Deputy Attorney General John Carlin highlighted DOJ's heightened attention toward sanctions and export control-related actions. All of these initiatives underscore DOJ's sharp focus on complex white collar crime and intolerance for inadequate internal controls and repeat offenders.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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