On 28 October 2021, during a speech at the 36th National Institute on White Collar Crime organized by the American Bar Association, Deputy Attorney General Lisa Monaco announced a significant review of the U.S. Department of Justice’s (“DoJ”) policies in the fight against economic crime. Aside from emphasizing the importance of compliance programs, four key points are to be taken away from the series of measures announced.
I. A global approach towards the background of a company under investigation
Prosecutors must now take a “holistic approach” when assessing the appropriate response to an investigation involving a company. They must therefore consider any previous reprehensible misconduct attributable to it, without limiting its examination to past misconduct similar to the alleged offence.
To this end, prosecutors are invited to consider all misconducts committed by the company and discovered during any previous enforcement action, whether national or foreign, criminal, civil or regulatory conducted against it or, where applicable, against its parent company, divisions, affiliates, subsidiaries and any other group entities.
II. A return to the “Yates Memo” standard regarding the liability of natural persons
These new measures also mark the return to the “Yates memo” standard, which required, in order to benefit from a cooperation credit, that companies provide the DoJ with all relevant elements (except privileged information) relating to the individuals involved in the alleged company’s misconduct.
The company must therefore identify all persons involved or responsible for the alleged misconduct, regardless of their position, status or seniority, whether internal or external to the company.
III. Use of monitorship as much as necessary
The use of an independent monitor will be put in place as much as it may be necessary to ensure that the company complies to the commitments made. Thus, prosecutors will have to give priority to the appointment of an independent monitor when a company’s compliance program and controls have not been tested, have been proven ineffective, or when they are inadequately resourced or not fully implemented at the time of the agreement.
IV. The creation of the Corporate Crime Advisory Group to strengthen criminal law enforcement towards economic crime
This working group will be responsible for the review of the DOJ’s approach to the prosecution of unlawful conduct by companies and their managers, executives and employees in order to make any recommendations and propose any appropriate policy revisions.
It will examine various topics such as cooperation credits, recidivism and factors for determining whether a case should be resolved via a deferred prosecution agreement (DPA), a non-prosecution agreement (NPA) or a plea agreement.
In addition, this working group will also consider how the DOJ can invest in new technologies such as artificial intelligence to help investigators when dealing with large amounts of data, but also how to best utilize the department’s various resources to strengthen criminal law enforcement towards economic crime.