DOJ Memo on Corporate Criminal Enforcement Policy

The One-Liner: Deputy Attorney General, Lisa Monaco, issued a memorandum on revisions to the Department of Justice’s Corporate Criminal Enforcement Policy

The Run-Down: The Three Major Changes Effective Immediately

  1. The DOJ will consider a company’s entire history of misconduct when making charging decisions
  2. Corporations under investigation must provide all relevant facts relating to the individuals involved
  3. The DOJ will provide updated guidance on the use of corporate monitors 

Why You Should Care:

  • Previously, the Justice Manual encouraged prosecutors to consider a corporation’s history of similar misconduct. However, now, all prior misconduct will be considered under a holistic approach. Thus, there will be a specific focus on corporate controls and recidivism. This means your company must be more diligent now more than ever. Any past misconduct can, and will, come back to haunt your organization. To prevent issues before they arise, exceptional compliance management is vital for the success of your company.
  • As opposed to previous requirements that allowed companies to limit disclosures to those they deemed to be “substantially involved”, organizations must now provide all non-privileged information regarding individual wrongdoing. Providing all relevant facts relating to an investigation will lead to increased financial costs for your company to bear, as this will require more thorough investigations. This will also require providing more non-privileged information to outsiders, thus there will also be larger data and security concerns, which your organization will have to proactively combat.
  • Corporate monitors track activities of corporations and evaluate their compliance with corporate practices. Monitors will be used in cases of “demonstrated need” and when there’s a “clear benefit”. This may arise when the DOJ finds a company’s program is deficient. This will lead to increased oversight and government involvement in your organization. Therefore, your organization must develop an effective compliance program and create controls that are diligently followed by all employees.

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