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Gregory Bates Comments on the DOJ's Latest Updates to its Corporate Criminal Enforcement Policies in Law360

"DOJ's New Cooperation Carrots May Not Whet Cos.' Appetites"


Gregory Bates discussed the U.S. Department of Justice's (DOJ) latest updates to its corporate criminal enforcement policies and how they may motivate companies to self-disclose misconduct in specific circumstances. The new policy lays out a path for companies whose misconduct includes aggravating circumstances — such as C-suite involvement, recidivism and egregious or pervasive crimes — to potentially avoid prosecution. Compliance attorneys are waiting for the DOJ to apply the new criteria to ascertain how achievable the department's new incentives are. Bates noted that compliance and legal departments often have pressure to reduce costs, since they don't directly generate revenue for a company. But last month's policy updates can help compliance officers and general counsel buttress their arguments for resources, collaboration and implementation of their compliance programs. "The DOJ is very good at sussing out when a compliance program is a paper program, where somebody is ticking the boxes, and when a company is serious about their compliance program," Bates said, adding that one area where he sees clients struggle is incorporating their commitment to ethics and compliance into their executive compensation and bonus programs, rather than basing those programs on other metrics like hard financial results.