DOJ’s Revised Company Prosecutions Coverage: Deputy Legal professional Common Lisa Monaco’s September 2022 Memorandum Ups the Ante

On Sept. 15, 2022, Deputy Legal professional Common Lisa Monaco launched Additional Revisions to Company Felony Enforcement Insurance policies Following Discussions with Company Crime Advisory Group (“Monaco Memo 2” or “Memo”), increasing on her Oct. 28, 2021 memorandum, Company Crime Advisory Group and Preliminary Revisions to Company Felony Enforcement Insurance policies (“Monaco Memo”). Though the Memo — as is true of all DAG memos governing an Administration’s company prosecutions coverage — is ostensibly supposed as steering to the attorneys at DOJ and the assorted United States Legal professional’s Workplaces across the nation, it’s useful as a information to the protection group in advising company purchasers. This most up-to-date model, amongst different issues: 1) focuses on what, how, and when proof relating to an worker’s misdeeds should be offered to DOJ to ensure that an organization to get cooperation credit score; 2) directs every DOJ unit or division that has not already completed so to draft its personal voluntary disclosure coverage “such that the advantages … are clear and predictable”; and three) offers steering on how one can deal with company compliance applications, together with compensation constructions, as a component of compliance for functions of figuring out the suitable decision of the case, together with whether or not a monitor needs to be put in. The Memo additionally clarifies earlier pronouncements made within the Monaco Memo relating to an organization’s prior misconduct — what’s included and what isn’t when deciding a decision. Lastly, within the pursuits of transparency and consistency, the DAG directs the Felony Division, in addition to different models, to develop guidances relating to compensation metrics in compliance applications and the general public monitor choice course of, respectively, by year-end.

Prosecution of People

Paying homage to the Yates Memo, the DAG memo governing DOJ’s company prosecutions coverage below the Obama Administration, the Memo reaffirms that particular person accountability is without doubt one of the Division’s first priorities; firms should disclose wrongdoing by people to obtain any form of cooperation credit score. The Memo provides that this disclosure should be well timed, outlined as “swiftly and at once.” The Memo discusses elements for a prosecutor to think about, such because the expiration of the statute of limitations and the chance of destruction of proof.