In October 2021, Deputy Attorney General Lisa Monaco announced major changes to corporate enforcement policies within the Department of Justice (DOJ), including significant rollbacks to previous reforms. As outlined in what’s called the “Monaco Memo,” these changes will likely disincentivize compliance investments and cooperation with the government.
What Are the DOJ Policy Changes to Corporate Criminal Enforcement?
The Monaco Memo makes three significant policy changes.
- Companies will be required to provide information about all individuals involved in or responsible for the purported misconduct. This is a return to the approach first introduced in the 2015 “Yates Memo.”
- A corporation’s full criminal, civil, and regulatory record (both domestic and foreign) will be considered when making prosecutorial decisions – regardless of its relevance to the matter under consideration.
- The Department has signaled a greater willingness to impose corporate monitors whenever they deem it appropriate in criminal matters.
Our recently released ILR Briefly explains that the Monaco Memo’s policy changes appear rushed, insufficiently developed, and not supported by data.
What This Means for Business
The Monaco Memo’s changes to the DOJ’s white-collar criminal enforcement policies have important implications for compliance teams and potentially significant unintended consequences. These undesired results include:
- Reducing companies’ willingness to self-report misconduct and cooperate with DOJ investigations
- Disincentivizing compliance investments
- Potentially overwhelming DOJ’s investigative bandwidth with superfluous and unhelpful information
- Likely slowing down corporate criminal investigations
- Reducing the public’s understanding of and trust in DOJ processes
Much remains to be seen about how the DOJ will implement the Monaco Memo’s new policies. As prosecutors align their practice with these new policies, companies and their legal counsel will need to work hard to ensure the considerable improvements in corporate criminal enforcement transparency and consistency achieved in recent years are not lost.