On Thursday, October 28, Deputy Attorney General Lisa Monaco gave the keynote address at the ABA’s 36th National Institute on White Collar Crime. Deputy Monaco’s remarks focused on corporate crime and detailed new enforcement priorities for the Department of Justice.
Most notably, Deputy Monaco stated that to further the Biden Administration’s policy agenda to be tougher on corporate crimes, it will no longer be sufficient to limit disclosures to only those “substantially involved” in the alleged misconduct for cooperation credit purposes. “Such distinctions are confusing in practice and afford companies too much discretion in deciding who should and should not be disclosed to the government,” Monaco said. “Cooperating companies will now be required to provide the government with all nonprivileged information about individual wrongdoing.”
Deputy Monaco provided five key takeaways from her remarks:
- Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct—or it will cost them in the future.
- For companies facing investigations, as of today, the Department will review their whole criminal, civil and regulatory record—not just a sliver of that record.
- For companies cooperating with the government, they need to identify all individuals involved in the misconduct—not just those substantially involved—and produce all non-privileged information about those individuals’ involvement.
- For companies negotiating resolutions, there is no default presumption against corporate monitors. Decisions about the appropriateness of a monitor will be made by the facts and circumstances of each case.
- This is a start—and not the end—of this administration’s actions to better combat corporate crime.
With these new policy initiatives, we expect not only an increase in investigations and prosecutions for corporate crimes, but increasingly aggressive positions taken by the government against suspected corporate crime.
The attorneys at Flannery | Georgalis have the necessary experience to assist companies navigate complex criminal and civil enforcement investigations. Flannery | Georgalis’ team has significant experience in defending individual executives, board members, and corporations themselves in matters involving the Department of Justice and other government agencies.