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The US Department of Justice (DOJ) announces a hardening
of the repression of "white collar" delinquency
Some thought that after the DOJ's imposition of staggering fines on companies caught in the anti-corruption net, there would be a pause in prosecutions. Their decline during the time of Donald Trump's occupancy of the White House may have given that impression but it was false. Deputy Attorney General Lisa O. Monaco told the American Bar Association (ABA) on October 28, 2021, that she was determined to crack down on companies that violate business ethics. She stressed that white-collar crime is a national security issue, citing social security fraud, insider trading, market manipulation, mortgage fraud, or cryptocurrencies.
While confirming that the DOJ would continue to act within the framework of the "Principles of Federal Prosecution" (https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution ), she announced three new directions:
• On the one hand, the DOJ will emphasize the individual responsibility of officers and agents who commit wrongdoing " To hold individuals accountable, prosecutors first need to know the cast of characters involved in any misconduct”. To that end, the DOJ will make it clear “that to be eligible for any cooperation credit, companies must provide the department with all non-privileged information about individuals involved in or responsible for the misconduct at issue… regardless of their position, status or seniority." .
• On the other hand, the outcome for the company will depend on the history of the company's conduct. In that vein, “the department is making clear that all prior misconduct needs to be evaluated when it comes to decisions about the proper resolution with a company, whether or not that misconduct is similar to the conduct at issue in a particular investigation. That record of misconduct speaks directly to a company’s overall commitment to compliance programs and the appropriate culture to disincentivize criminal activity." Prosecutors will thus need to be aware of any sanctions of any kind that may have already been imposed on the company, whether in the U.S. or the rest of the world: tax violations, environmental violations, money laundering, etc. It is thus a new concept of recidivism that is being put forward.
Finally, the DOJ will favor the routine placement of a "monitor" after a sanction is imposed “making clear that the department is free to require the imposition of independent monitors whenever it is appropriate to do so in order to satisfy our prosecutors that a company is living up to its compliance and disclosure obligations under the DPA or NPA."
Three avenues for reflection are also outlined in the new guidance of the DOJ:
• First, consideration is given to how to deal with "repeat offenders" with a particularly lengthy history. For these firms, the granting of a DPA or NPA may not be recommended.
• Secondly, it will be necessary to ensure more closely that companies, after a DPA or NPA, take their obligations to heart by genuinely renouncing misconduct.
• Finally, the DOJ is going to create a body - the "Corporate Crime Advisory Group" - bringing together various DOJ departments to make recommendations on, among other things, (i) the method of selecting monitors, (ii) "recidivism", and (iii) the possibility of a company returning to laxity once it has entered into a DPA or NPA.
This message invites companies, particularly French ones, and above all the larger ones, to revisit their compliance programmes in order not to be caught out, as those that have already concluded a DPA or similar (CJIP, in particular) or have had legal convictions are more than others particularly exposed.
Compliance and vigilance have never been so intrinsically linked.
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