Corporate Culture Matters: Renewed Commitment to Compliance
By: Christin M. Roberts
Relying on old and new guidance, the Department of Justice will consider the following when addressing misconduct by corporate entities:
- Disclosure of ALL information about individuals involved in the misconduct
- Consideration of ALL prior acts of misconduct
- Use of Independent Monitors
Priorities and actions: While addressing attorneys at the American Bar Association’s White Collar Crime Institute recently, Deputy Attorney General Lisa Monaco laid out the Department’s “enforcement priorities” and three actions she believes will deter corporate crime. The Department’s enforcement priority must be to “enforce the criminal laws that govern corporations, executives, officers and others” Monaco said. With those priorities in mind, Monaco outlined three actions the Department will take to “hold individuals and corporations accountable for their misconduct” when negotiating a resolution to an investigation:
- require companies to provide the Department with all information about individuals involved in the misconduct at issue;
- consider all prior acts of misconduct of individuals and companies when evaluating the proper form of resolution; and
- restore the guidance relating to the use of independent monitors when the Department feels it is appropriate to ensure compliance with a DPA or NPA.
Monaco’s three actions are intended to be bold, but they are not necessarily new actions. Rather, the actions represent a return to priorities that emphasize corporate and individual accountability. In 2015, then Deputy Attorney General Amy Yates circulated a memo (the “Yates Memo”) outlining certain requirements for companies hoping to receive consideration for cooperation. The Yates Memo directed companies to completely disclose all relevant facts about individual misconduct. This mandate was intended to stop the notion that companies could ‘pick and choose’ which facts to disclose. A 2018 Memo softened this requirement, and only required disclosure of those individuals “substantially involved” in the misconduct. Three years later, Monaco says “It is no longer sufficient for companies to limit disclosures to those they assess to be ‘substantially involved’ in the misconduct.’”
The Department has always looked at certain prior misconduct when considering corporate resolutions. Now, prosecutors will consider the full range of prior misconduct, whether related to the misconduct being actively investigated or not. This “broader view of companies’ historical misconduct will harmonize the way we treat corporate and individual criminal histories” Monaco explained.
Finally, Monaco’s effectively rescinded prior guidance that monitorships should be the exception and not the rule. When the corporate culture of a corporation is called into question, the Department will require independent monitors as a tool to encourage and verify compliance.
To read Monaco’s full speech, click on the following link: https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute