Monaco Memo 2.0: Companies Should Start Preparing Now for Future DOJ Investigations
Corporate Compliance Insights
In this article, author John Davis discusses two key issues that companies need to begin preparing for now to avoid potential repercussions in future FCPA-related investigations by the U.S. Department of Justice (DOJ). On September 15, 2022, Deputy Attorney General Lisa Monaco issued a new memorandum, "Further Revision to Corporate Criminal Enforcement Policies," that will apply across all of the DOJ’s components. The new Monaco Memorandum indicates new guidance for DOJ prosecutors in several key areas of interest to companies potentially facing criminal investigations, including the prioritization of building cases against culpable individuals, the evaluation of a company's prior corporate misconduct history, the discussion of the role of executive compensation structures, the use of personal devices and third-party applications, and the selection and management of Independent Compliance Monitors. "Two of the most critical challenges [created by the updated DOJ guidance in the Memo] involve employees' use of personal devices and third-party applications for work communications and the use of employee compensation to discipline and incentivize compliance," Davis writes, adding that "[t]he DOJ plans to issue further guidance on both areas in the future, but companies should begin assessing how to manage these issues now." He suggests that in the meantime, companies should consider various steps in relation to their management of company data on personal devices and third-party applications (such as WhatsApp, WeChat, etc.) and incentivizing and disciplining executives using compliance metrics.