Recommendations for How to Respond to the U.S. Department of Justice’s Evolving Enhancements to its Corporate Criminal Enforcement Policies
On January 17, 2023, in furtherance of the U.S. Department of Justice’s (“DOJ”) efforts to enlist corporations to help fight corporate criminality, Assistant Attorney General Kenneth A. Polite, Jr. (“Polite”) delivered remarks on revisions to the Criminal Division’s Corporate Criminal Enforcement Policies. His remarks followed Deputy Attorney General Lisa Monaco’s September 15, 2022 memorandum (the “Monaco Memo”) that announced changes and enhancements to these policies that aimed to strengthen and clarify existing guidance. The updated policies set forth in the Monaco Memo and reinforced by Polite, continue DOJ’s efforts to, among other things, incentivize corporations to develop more robust compliance programs with sustainable compliance cultures to: (1) prevent misconduct from occurring; and (2) obtain favorable treatment from the DOJ in the event that the corporation engages in criminal conduct that becomes the subject of a DOJ criminal investigation, whether through voluntary disclosure or otherwise.
While the Monaco Memo includes pronouncements on a number of different issues, this paper focuses on the key areas that address the importance that DOJ has placed on corporations’ responsibility to design and operate an effective compliance program, and the benefits that corporations that heed the warnings pronounced by DOJ will receive if they find themselves to be the subject of a DOJ criminal investigation. We conclude this paper by making recommendations on how to properly respond to the points raised in the Monaco Memo, as reinforced by Polite’s remarks, who called for, “investment in your compliance function [to, among other things, help find] lasting solutions to corporate criminality.”