The U.S. Department of Justice recently announced three key changes to the way it will respond to corporate crime. The announcement came during a speech by Deputy Attorney General Lisa Monaco during an address to the American Bar Association’s National Institute on White Collar Crime. It was followed by a memo outlining the key components.
First: DAG Monoco said individual accountability is key and prosecutors need to know “the cast of characters” involved in any misconduct. As a result, companies must provide DOJ with all non-privileged information about those involved or responsible for any misconduct regardless of their position, status or seniority. It will no longer be sufficient for companies to limit disclosure of who they determine to be “substantially involved” in the misconduct.
“To aid this assessment, cooperating companies will now be required to provide the government with all non-privileged information about individual wrongdoing,” she said.
Second, Monoco said that DOJ is making it clear that all prior misconduct be looked at when it comes to decisions about the proper resolution of a case. “That record of misconduct speaks directly to a company’s overall commitment to compliance programs and the appropriate culture to disincentivize criminal activity,” she said.
Finally, she rescinded prior guidance on the use of corporate monitors and said the department is free to require their use whenever it is deemed appropriate to ensure that a company is living up to its compliance and disclosure obligations, particularly in instances when the basis for trust is limited or called into question.
Monoco said she will be convening a Corporate Crime Advisory Group within DOJ. It will be tasked with reviewing how the agency approaches prosecuting criminal conduct by corporations, their executives, management, and employees. The group will be given a broad mandate to consider various topics that are central to the goal of updating the agency’s approach to how it enforces corporate criminal activity.
The group will look into how the DOJ can support those on the front line of combatting and prosecuting corporate crime. It will determine what investments can be made into new technologies such as artificial intelligence assist in processing the vast amount of data collected during investigations. It also will solicit input from the business community, academia, and the defense bar to make sure any changes made take into consideration different perspectives.
“Looking to the future, this is a start — and not the end — of this administration’s actions to better combat corporate crime,” Monoco told her audience.