Slicing Up DOJ's Half-a-Loaf Update to Corporate Enforcement Policy
Corporate Compliance Insights
In this article, John Davis and Surur Fatema Yonce discussed the Department of Justice (DOJ) Criminal Division's updated corporate enforcement policy, and how it continues to encourage companies to self-disclose potential criminal issues "at the earliest possible time", introducing new and enhanced incentives for doing so. The policy gives prosecutors more discretion to differentiate between degrees of corporate cooperation and remediation. According to the updated policy, the enhanced incentives include the availability of a declination and significant financial relief for recidivists and others with "aggravating circumstances," the benefit of no corporate guilty plea requirement absent the presence of particularly egregious or multiple aggravating circumstances, and "generally" no corporate monitor requirement "if a company has, at the time of resolution, demonstrated that it has implemented and tested an effective compliance program and remediated the root cause of the misconduct." "[It] does not contain promised guidance on other important issues, such as how the DOJ will assess compensation clawbacks and specific DOJ expectations related to corporate policies on the management of use of personal devices and third-party messaging platforms," the authors wrote.
"Overall, the revised Policy represents the latest DOJ attempt to encourage early self-disclosure, full cooperation and substantial remediation efforts by companies facing FCPA and other criminal issues. However, companies likely will continue to want to see further examples of coherent application of such benefits in future cases, especially as regards the always complicated decision regarding self-disclosure," the authors said.