DOJ Revamps Corporate Criminal Enforcement Policies with Continued Emphasis on Compliance

At a September 15, 2022, speech at New York University School of Law, US Deputy Attorney General (Deputy AG) Lisa Monaco announced several new policies intended to further the aggressive stance the US Department of Justice (DOJ) has taken under the Biden administration to corporate criminal enforcement.

The DOJ’s landmark new policies are focused on encouraging and enticing companies to self-report criminal violations and cooperate in DOJ investigations. They include:

  • First, for the first time, every DOJ component that prosecutes corporate crime will have to develop a formal program to incentivize voluntary self-disclosure. Importantly, the DOJ will not seek a guilty plea when a company has voluntarily self-disclosed, cooperated in the DOJ’s investigation and remediated misconduct.
  • Second, companies seeking cooperation credit need to come forward and disclose important evidence to the DOJ quickly. Companies—and prosecutors evaluating those companies—will now be “on the clock.” Undue or intentional delay in providing information and documents will result in a reduction or outright denial of cooperation credit.
  • Third, the DOJ will now formally encourage companies to hold in escrow or claw back compensation from executives and employees responsible for wrongdoing.

Deputy AG Monaco provided additional guidance with respect to significant changes announced in October 2021, including on how prior criminal, civil and regulatory misconduct by companies will be evaluated when deciding an appropriate resolution, and how and when monitors should be imposed.

Deputy AG Monaco also announced that the DOJ would seek an additional $250 million in targeted resources for corporate criminal enforcement and other corporate crime initiatives.


While Deputy AG Monaco continued to emphasize—as she did in speeches in October 2021 and March 2022—that the DOJ’s No. 1 priority remains individual “accountability” and prosecutions, the recent announcement is the latest in a series of ambitious steps taken by the DOJ under the Biden administration to further the Department’s ongoing and increasing emphasis on misconduct at the corporate level. Taken collectively, the mixture of carrots, sticks and potential additional resources demonstrates the DOJ’s continued focus on pursuing corporate wrongdoing and the need for companies to proactively assess their compliance programs and ensure they are well-positioned to respond to the DOJ’s boundary-shifting approaches.


Among the more significant changes, every DOJ component that prosecutes corporate crime will, for the first time, be required to have a documented policy that incentivizes voluntary self-disclosure. Deputy AG Monaco highlighted the success of a handful of self-disclosure programs that several DOJ components have already developed, such as the long-standing Antitrust Division Leniency Program and the Foreign Corrupt Practices Act (FCPA) unit’s self-reporting program. She also stated that if a DOJ component does not have such a formal, documented policy, they must draft one. In support of this policy, she noted that the DOJ’s “goal is simple: to reward those companies whose historical investments in compliance enable voluntary self-disclosure and to incentivize other companies to make the same investments going forward.”

Deputy AG Monaco also announced several broad principles that will apply to each component’s voluntary self-disclosure policies. Most notably, voluntary self-disclosure will, in many cases, allow companies to avoid criminal prosecution altogether. “Absent aggravating factors, the Department will not seek a guilty plea when a company has voluntarily self-disclosed, cooperated and remediated misconduct.” Deputy AG Monaco also foreshadowed that in the coming months the DOJ would announce resolutions that demonstrate the benefits of corporate self-disclosures, as opposed to companies that chose not to self-disclose and cooperate with the DOJ.


In another significant change, Deputy AG Monaco declared that DOJ will now put companies seeking cooperation credit “on the clock” and that companies seeking to cooperate—including those that have voluntarily self-disclosed information or documents—must come forward with that evidence more quickly. Noting that “speed is of the essence,” she added that if a “cooperating company discovers hot documents or evidence, its first reaction should be to notify the prosecutors.” Any undue or intentional delays in production of information or documents to the DOJ will result in a reduction or outright denial of cooperation credit.


DOJ prosecutors will now consider a company’s compensation structure when evaluating the strength of its compliance program. Specifically, Deputy AG Monaco instructed prosecutors to consider whether a company’s compensation system rewards compliance-promoting behavior and imposes financial sanctions on employees or executives who direct or supervise acts and/or omissions that contribute to a criminal violation. Further, prosecutors must consider a company’s actions relating to compensation after learning of the misconduct, including whether “a company actually claws back compensation or otherwise imposes financial penalties.” She indicated that the Department’s Criminal Division will develop further guidance on rewards for companies that employ clawback or similar arrangements by the end of 2022.


Noting that between 10% and 20% of large corporate criminal resolutions involve “repeat offenders,” Deputy AG Monaco announced additional guidance about how prior criminal, civil and/or regulatory records will now be considered by prosecutors when deciding how to resolve a criminal violation. Prior misconduct that led to US criminal resolutions and wrongdoing that involves the same personnel and/or management as the misconduct currently under review will be considered highly relevant and significant. Importantly, older conduct—criminal resolutions occurring more than 10 years before the current conduct under investigation and civil or regulatory resolutions occurring more than five years before the current conduct under investigation—will be afforded less weight. The nature and circumstances of prior misconduct, as well as a company’s history when compared to others similarly situated in the same industry, will also be important considerations. Lastly, Deputy AG Monaco remarked that the DOJ “will disfavor multiple, successive non-prosecution or deferred prosecution agreements with the same company.”


After the DOJ signaled its intentions to expand the use of independent compliance monitors earlier this year, Deputy AG Monaco acknowledged that there remains a need to clarify the monitorship process in a number of ways. The DOJ is taking a number of steps that will make the monitor process more transparent, including by providing clear factors that prosecutors will consider in determining whether a monitor is appropriate and to establish consistent standards for the process of selecting a monitor. Most notably, the DOJ is focused on improving efficiency and ensuring that every monitorship is appropriately tailored in scope and duration. The DOJ will confirm that the monitor, the DOJ and the company subject to the monitorship are in agreement on the monitor’s scope and work plan at the outset of the process. Prosecutors may also consider reducing the length of monitorships in response to prompt compliance improvements, in addition to the option to extend a monitorship. The DOJ plans to be more hands-on in “monitoring the monitor,” which will likely help keep monitorship engagements on track and within scope.


  • The DOJ’s new policies reflect an attempt to both incentivize and pressure companies to self-report criminal violations and cooperate in DOJ investigations. Importantly, the new policy seems to incentivize quick cooperation not just in DOJ investigations but against a company’s own executives. These are often complex cases and take time to develop facts and defenses, but Deputy AG Monaco affirmed that the DOJ will insist that voluntary self-disclosures happen quickly and that speed is of the essence.
  • It remains unclear what practical impact these ambitious policies will have. Although additional DOJ resources have been directed at pursuing these time-intensive and complex investigations, we have yet to see the resulting increase of actual corporate criminal enforcement activity from the Department. Without that, some companies may still decide that quick voluntary disclosures are not in their best interests. In addition, until there is a demonstrated track record or predictability that cooperating companies are receiving a meaningfully more favorable resolution, the new guidance may not cause many more companies to rush to cooperate. And companies will still have to carefully weigh the costs and benefits of voluntary self-disclosure.
  • The devil will be in the details. The offered carrot in the new DOJ leniency program is significant—a no-plea deal for a corporate criminal violation—but questions still remain. How much self-reporting and cooperation is needed to cross the threshold to earn this benefit from the DOJ? And if the threshold is crossed, it remains uncertain how much credit a company will actually receive. In addition, while the Antitrust Division’s leniency and FCPA unit’s voluntary disclosure programs were highlighted as model examples, each DOJ component has been tasked with drafting their own corporate leniency type program. We will keep an eye out to see how uniform and consistent the programs are in practice.
  • The clear import of Deputy AG Monaco’s ongoing policy statements is that compliance matters. The DOJ could not be clearer; the Department will be taking a hard look at compliance programs and expects them to be robust. The emphasis on early self-reporting is intended to further incentivize companies to have strong compliance programs that identify and address misconduct before the DOJ does. For those organizations that have not already done so, it is time to reassess the compliance program; for organizations that have recently reviewed and updated their programs, it is critical to take a hard look at Deputy AG Monaco’s most recent comments—including those about executive compensation—to ensure that they are being considered in compliance program design and implementation.
Justin P. Murphy
Justin P. Murphy is a partner in the firm’s Regulatory Practice Group. A former federal prosecutor, Justin counsels and represents corporate and individual clients involved in government enforcement of complex antitrust, fraud and all phases of white-collar criminal and related civil matters, including internal corporate investigations, False Claims Act (FCA), Foreign Corrupt Practices Act (FCPA), e-discovery, data privacy, cybersecurity, securities enforcement, federal grand jury, inspector general investigations and trials and appeals. His focus in criminal antitrust investigations includes bid-rigging, price-fixing, procurement fraud, hiring practices and market allocation in a variety of industries.

Edward Diskant
Edward (Ted) B. Diskant is a former federal prosecutor and experienced trial lawyer who focuses his practice on representing companies and individuals in a wide range of white collar and regulatory enforcement matters and in complex civil litigation. Ted has extensive experience handling sensitive investigations, with particular expertise in matters involving the anti-bribery laws including the Foreign Corrupt Practices Act (FCPA), wire fraud, healthcare fraud, money laundering, and the Bank Secrecy Act (BSA). Ted also consults on compliance matters and helps clients design, implement and audit compliance programs consistent with US Justice Department (DOJ) and other applicable guidance. Read Edward B. Diskant's full bio. 

Sarah Walters
Sarah Walters is an experienced trial lawyer who focuses her practice on white collar criminal defense, regulatory enforcement and compliance matters and complex civil litigation. In addition to both criminal and civil trial work, Sarah has substantial experience conducting internal investigations and representing clients in securities, healthcare and other government enforcement matters. She also assists companies in developing compliance policies and training programs. Sarah represents companies and individuals in criminal and civil investigations involving all types of alleged financial fraud, including honest services or commercial fraud, accounting and disclosure issues and public corruption. She conducts independent investigations on behalf of Audit and other Board committees and has handled criminal and civil healthcare matters for hospital systems, medical device manufacturers and electronic health record providers, including in connection with alleged violations of the Federal Anti-Kickback Statute and matters arising under the Stark law. Read Sarah Walter's full bio. 

Julian Andre
Julian L. André focuses his practice on litigation with a particular emphasis on government prosecutions, enforcement actions and investigations, internal investigations, complex civil litigation and appellate matters. He is an experienced trial attorney and former federal prosecutor. Prior to rejoining McDermott, Julian spent six years as an Assistant US Attorney in Los Angeles. While an AUSA, Julian served in the Major Frauds Section, where he investigated and prosecuted complex financial crimes, including embezzlement, securities fraud, healthcare fraud, bank fraud, education fraud, CARES Act fraud, bankruptcy fraud, import/export crimes, tax crimes and money laundering. Julian also served as the US Attorney’s Office’s Securities Fraud Coordinator and Education Fraud Coordinator.Read Julian André's full bio. 

Paul M. Thompson
Paul M. Thompson is the Managing Partner of the Washington, DC office and also serves as the Firm’s Pro Bono Litigation Partner. Paul previously served on McDermott’s Executive and Management Committees and, from 2011 to 2015, he also served a previous term as Managing Partner of the Washington, DC office. Read Paul M. Thompson's full bio.

Ben Curtis
Benton (Ben) Curtis, a former federal prosecutor and experienced trial attorney, focuses his practice on leading matters, both domestically and abroad, that involve government enforcement defense, internal investigations, compliance counseling, and due diligence regarding third parties and business transactions. Ben regularly represents clients before, and in litigation against, government agencies, including clients accused of health care fraud, kickback violations, Foreign Corrupt Practices Act (FCPA) violations, money laundering, and securities fraud. Ben likewise regularly represents corporations and high net worth individuals who have been victimized through internal or third-party misconduct, often in the form of an exceptional theft or fraud. Read Benton Curtis's full bio. 

Caitlyn Campbell
Caitlyn M. Campbell, a former US Securities & Exchange Commission (SEC) Enforcement Attorney, focuses her practice on representing clients in SEC investigations, securities class action and derivative litigation, and compliance matters. Caitlyn has extensive experience in matters involving potential violations of the federal securities laws, including allegations of accounting and disclosure violations, fraud and regulatory violations by investment advisers and broker-dealers, insider trading, anti-corruption and FCPA violations, and whistleblower claims. She also assists companies in developing training programs and compliance policies and procedures.Read Caitlyn M. Campbell's full bio. 





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