In a recent speech to the ABA’s Annual White Collar Institute, Deputy AG Lisa Monaco announced some significant changes to the DOJ’s corporate criminal enforcement policies. In addition to tightening up the requirements for cooperation credit, Monaco said that the DOJ is changing the approach that it takes to classifying companies as recidivists, and rescinding any guidance suggesting that the appointment of corporate monitors is disfavored. This excerpt outlines the DOJ’s new approach to cooperation credit:
To hold individuals accountable, prosecutors first need to know the cast of characters involved in any misconduct. To that end, today I am directing the department to restore prior guidance making clear that to be eligible for any cooperation credit, companies must provide the department 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.
It will no longer be sufficient for companies to limit disclosures to those they assess to be “substantially involved” in the misconduct. Such distinctions are confusing in practice and afford companies too much discretion in deciding who should and should not be disclosed to the government. Such a limitation also ignores the fact that individuals with a peripheral involvement in misconduct may nonetheless have important information to provide to agents and prosecutors.
The department’s investigative team is often better situated than company counsel to determine the relevance and culpability of individuals involved in misconduct, even for individuals who may be deemed by a corporation to be less than substantially involved in misconduct. To aid this assessment, cooperating companies will now be required to provide the government with all non-privileged information about individual wrongdoing.
The new policy reverses the Trump DOJ’s 2018 decision to ease the requirements for cooperation credit. When it comes to classifying a company as a recidivist, the new policy says that every brush with the law in its past is now fair game for inclusion in the assessment, not just those involving similar conduct. Finally, it seems pretty clear that under the new policy, the DOJ will be insisting on the appointment of independent monitors more frequently than it has in recent years.
In short, there’s a new sheriff in town. We’re posting memos in our “White Collar Crime” Practice Area.
-John Jenkins, TheCorporateCounsel.net November 1, 2021