In an apparent response to a downturn in corporate cases and criticism that its harsh rhetoric was chilling corporate cooperation, the Department of Justice (“DOJ”) recently announced significant changes to its policy on corporate enforcement aimed at sweetening the deal for companies under criminal investigation. The move is a welcome change, and, if DOJ enforcement follows through on its promises, companies will be more likely to self-report crimes and cooperate with government investigations, which should lead to more corporate settlements, individual prosecutions and potentially significant savings for companies in the crosshairs.
On January 17, 2023, DOJ announced significant amendments to its Corporate Enforcement Policy, including renaming it the “Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy” (or “CEP”). The previous policy formally applied only to matters involving violations of the Foreign Corrupt Practices Act (“FCPA”), but the Criminal Division had for years applied the policy to companies that were subject to criminal investigations, and the name change now cements this practice as policy. The most substantive changes to the CEP are the significant increases in credit now available to companies that cooperate with DOJ investigations, both for self-reporting companies and even those first identified by prosecutors. Among other things, the CEP now provides for increased prosecutorial discretion by permitting broader candidacy for criminal declination, as well as more widely available fine reductions that could shave tens, and even hundreds of millions of dollars off of criminal resolutions.
DOJ Assistant Attorney General of the Criminal Division Kenneth Polite (“AAG Polite”) announced DOJ’s revisions to the CEP to an audience of white collar defense practitioners at the Georgetown University Law Center.1 The amendments reflect a shift from the past two years’ escalating rhetoric that many argued was deterring otherwise cooperatively inclined companies from working with DOJ, which made it harder for the government to investigate and ultimately bring white collar cases.2 The new policy reflects a more balanced carrots-and-sticks approach that will allow prosecutors to seek a declination (even where “aggravating circumstances” exist) and significant fine reductions (even for companies deemed by DOJ as “recidivist” in the past) — while allowing prosecutors to carefully weigh corporations’ relative degree of cooperation, remediation, and self-disclosure. The changes in some ways align more closely to the reality of recent enforcement actions where DOJ appears to have taken a nuanced approach to settlements despite its tough talk. In any case, the greater transparency and specificity of the formal policy could have an impact on companies’ decision making as they work through the incentive calculus of self-disclosure — it will all depend on how DOJ actually implements and applies this refined, but very subjective, rubric in practice.
The Most Significant Changes to the CEP
The most significant changes to the CEP extend the availability of declinations and fine reductions to additional classes of previously ineligible corporate defendants. All forms and levels of leniency are still conditioned on full cooperation and timely and appropriate remediation. Prior missteps and aggravating circumstances, however, will no longer present firm roadblocks to leniency. Theoretically, this softening should incentivize companies, especially those that were unable to self-disclose or find themselves with aggravating factors, to come forward and provide substantial cooperation.
Under the previous policy, if a company self-reported, remediated problems, and fully cooperated with a DOJ investigation into individuals, then it would be eligible to receive a declination, or alternatively, it would qualify for a fine reduction of between 25–50% off of the low end of the United States Sentencing Guidelines (“U.S.S.G.”) fine range if DOJ found aggravating circumstances to exist. Companies also were required to disgorge all profits as part of any declination, which would be publicly reported by DOJ. Companies that did not self-report were still eligible to receive up to 25% off of the low end of the U.S.S.G., provided they fully remediated and cooperated with DOJ.
The recent changes to the CEP continue to presume a declination for self-reporting companies, absent aggravating circumstances, but the CEP now raises the maximum fine reduction from 25–50% to 50–75% when aggravating circumstances are present. In the past twenty-four months, DOJ has focused much of its harshest rhetoric on companies deemed to be “recidivist” actors,3 but the CEP changes make clear that even recidivist companies will be eligible for declinations or reductions of up to 75% off of the low end of the U.S.S.G. penalty range. Similarly, recidivist companies that do not self-report are now eligible for up to a 50% reduction in their penalty, provided that they cooperate and remediate appropriately.
For companies that do self-disclose, but where aggravating circumstances are present, the revised CEP now affords prosecutors more discretion to issue:
- A declination if an entity (i) “immediately” self-disclosed after becoming aware of an allegation of misconduct, (ii) enacted an effective compliance program and internal accounting controls at the time of the misconduct, which led to the self-disclosure, and (iii) exhibited “extraordinary” cooperation and remediation exceeding the factors listed in JM 9-47.20;
- A criminal resolution for a non-recidivist company that presents other aggravating circumstances, triggering a reduction of at least 50% and up to 75% from the low end of the U.S.S.G. fine range; or
- A criminal resolution for a recidivist company that presents aggravating circumstances, triggering a reduction of at least 50% and up to 75%, but not from the low end of the U.S.S.G. fine range.
According to AAG Polite, declinations in the face of aggravating circumstances are reserved for companies that go “above and beyond the criteria for full cooperation set in [DOJ] policies — not just run of the mill, or even gold-standard cooperation, but truly extraordinary.” The CEP also grants prosecutors wide discretion to determine both the specific percentage reduction and starting point in the U.S.S.G. range based on the particular facts and circumstances of the case. DOJ intends the revised CEP to “incentivize[] even more robust compliance on the front-end, to prevent misconduct, and require[] even more robust cooperation and remediation on the back-end, if a crime occurs.” Aggravating factors (such as recidivism, high-level involvement or prevalence of misconduct across regions or business units) no longer serve to disqualify a company from consideration for a declination, which is a significant and thoughtful change.
The following table (Figure 1) presents a side-by-side illustration of the most significant changes to the CEP, and the flowchart (Figure 2) demonstrates the decision tree for prosecutors to now follow.
Figure 1.
|
No Voluntary Self-Disclosure Full Cooperation Timely and Appropriate Remediation |
||
| Type of Defendant | 2019 Version of CEP | 2023 Version of CEP |
| Non-Recidivist | Up to a 25% reduction off of the low end of the U.S.S.G. fine range. | Up to a 50% reduction from the low end of the U.S.S.G. fine range. |
| Recidivist | (Does not address) | Up to 50% reduction, but not from the low end of the U.S.S.G. fine range. |
|
Voluntary Self-Disclosure Full Cooperation Timely and Appropriate Remediation |
||
| Type of Defendant | 2019 Version of CEP | 2023 Version of CEP |
| No Aggravating Circumstances | Presumption of Declination. | Presumption of Declination. |
| Aggravating Circumstances but Non-Recidivist | Possibility of up to 50% reduction from the low end of the U.S.S.G. fine range. | Prosecutorial discretion to issue declination if heightened requirements are met.
At least 50% and up to 75% reduction off of the low end of the U.S.S.G. fine range. |
| Recidivist | (Does not address) | Prosecutorial discretion to issue declination if heightened requirements are met.
At least 50% and up to 75% reduction off of the U.S.S.G., but not from the low end of the range. |
| Note: Heightened requirements are met when defendants: (1) “immediately” self-disclose upon awareness of allegation of misconduct; (2) demonstrate an effective compliance program & internal controls at time of misconduct and disclosure that led to self-disclosure; and (3) exhibit “extraordinary” cooperation & remediation that exceeds factors in JM 9-47.20. | ||
Figure 2.
Dramatic Reversal or Consistent with Recent Enforcement Trends?
Prior to the CEP revisions, DOJ’s recent corporate rhetoric had emphasized tough and punitive corporate enforcement. In Deputy Attorney General (“DAG”) Lisa A. Monaco’s October 2021 and September 2022 memoranda, the DOJ promised compensation claw backs, increased punishment of recidivist companies, and a higher likelihood of imposing costly and intrusive corporate monitorships upon companies.4 DOJ also expressed its intent to employ a heavy hand concerning recidivism and oversight of compliance efforts. For example, DAG Monaco has directed prosecutors — when making determinations about criminal charges and plea agreements for a corporate entity — to consider all past misconduct (including domestic and international, civil or criminal or regulatory enforcement), thus widening the scope of “recidivist” activity.5 In early 2022, Mr. Polite remarked that, where the DOJ does not impose a monitor in enforcement actions, the DOJ instead will consider having executives personally certify the truth and accuracy of compliance reports.6 Given the aggressive sticks-over-carrots approach in recent years, it may seem hard to reconcile the policy changes that many will find to be far more company-friendly than DOJ’s previous statements suggest. Closer inspection of DOJ’s recent enforcement history, however, reveals that DOJ has actually been more reasonable notwithstanding relatively pointed remarks from DOJ officials. The policy changes thus serve to better document how this Department is actually enforcing corporate crime, in practice.
For example, in December 2022, the DOJ entered into a $315 million criminal resolution with ABB Ltd and its corporate affiliates (“ABB”), a two-time FCPA offender that received a significant fine reduction from the midpoint of the U.S.S.G., and most significantly, resolved its case without the imposition of a corporate monitor.7 After its second, “decade-old” FCPA resolution, ABB implemented a compliance program that detected the FCPA misconduct at issue. Before the company could self-disclose the misconduct in a scheduled meeting with the government, a media report drew public attention to the wrongdoing. This precluded full credit for self-disclosure, but because the company demonstrated intent to self-disclose prior to, and without any knowledge of, the media report, the DOJ weighed early detection and intent to disclose in the company’s favor, along with “extensive” remediation (e.g., a root cause analysis) and “extraordinary” cooperation.
Similarly, in 2021, Credit Suisse Group AG and its corporate affiliate (“Credit Suisse”) entered into a $547 million corporate resolution with DOJ, which involved violations of the FCPA only years removed from a different FCPA resolution in 2018.8 The DOJ awarded “partial credit” — here, a 15% reduction off the bottom of the U.S.S.G. — because Credit Suisse failed to voluntarily disclose its wrongdoing and “significantly delayed” the production of relevant evidence to investigators. But, once again, Credit Suisse managed to settle its case without the imposition of a corporate monitor.
Takeaways
While the CEP demonstrates a rhetorical tide change and potentially significant substantive changes to corporate enforcement, it remains to be seen how the new CEP will affect corporate behavior in practice. As Acting Principal Deputy Assistant Attorney General (“PDAAG”), Nicole M. Argentieri, noted in December at the International Conference on the FCPA, the pandemic chilled foreign corruption settlement efforts.9 There may be an uptick in FCPA prosecutions attributable simply to the pandemic’s waning. But, PDAAG Argentieri also foreshadowed features of the revised CEP and their potential impact on the number and severity of prosecutions.
There is no question that corporate prosecutions, especially international investigations involving violations of the FCPA and antitrust cartel laws, require substantial global coordination, cooperation from foreign witnesses, and voluminous cross-border data and foreign-language documents. DOJ cannot fight these fights alone. To bring the type of cases it wants, DOJ must rely on multinational corporations to cooperate, facilitate and even drive investigative efforts. Document collections and reviews are too onerous, and require navigating global privacy laws and international assistance treaties, as well. Access to witnesses beyond the reach of U.S. subpoena power can be difficult indeed. But by incentivizing voluntary self-disclosure, cooperation, and investment in efficient compliance functions, the DOJ may have shifted the calculus for companies with often greater resources and fewer evidentiary hurdles to help DOJ build and bring more corporate cases.
The revised CEP also offers carrots to organizations that proactively invest in compliance measures — both as a threshold requirement for recidivist declinations and to promote the early detection of misconduct to enable self-disclosure. Companies should implement incident-response plans with disclosure checkpoints embedded in the early stages of an investigation, soon after discovering misconduct. Compliance programs should also feature built-in remedial measures that focus on individual accountability. Companies placed in the crosshairs of a potential DOJ investigation now have reason to think long-and-hard about whether self-reporting and cooperation make sense. Now, more than ever, companies need sophisticated counseling from experienced lawyers who understand the evolving corporate enforcement landscape, have experience designing and implementing corporate enforcement for the Department, and can best advise how existing DOJ policies can be used to their advantage.
1Kenneth A. Polite, Jr., Assistant Attorney General, U.S. Dep’t of Just., Remarks on Revisions to the Criminal Division’s Corporate Enforcement Policy (Jan. 17, 2023), https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-remarks-georgetown-university-law. The CEP stems from an April 2016 pilot program that was specific to corruption cases under the Foreign Corrupt Practices Act (“FCPA”), offering leniency to companies that self-reported and cooperated in corruption investigations. In November 2017, the DOJ formally incorporated the pilot program into the Justice Manual. Over the years, DOJ has tweaked the CEP in attempts to strike the right balance between carrots (incentives for companies to self-report and cooperate) and sticks (punishment and deterrents for companies to avoid wrongdoing), while gradually expanding its application to corporate cases prosecuted by the Criminal Division in practice. See e.g., Chris James, Tyler Blake, and Lara McMahon, DOJ and SEC Stick Stericycle with a Two-Year Monitorship, Despite Acknowledgment of Extensive Remedial Measures, The V&E Report (April 28, 2022), https://www.velaw.com/insights/doj-and-sec-stick-stericycle-with-a-two-year-monitorship-despite-acknowledgment-of-extensive-remedial-measures/.
2Ephraim (Fry) Wernick, G. Zachary Terwilliger, Peter T. Thomas, Angie Garcia, DOJ Chooses Sticks Over Carrots: Three Reasons Why Changes to DOJ’s Corporate Enforcement Policy May Chill Cooperation by Companies, The V&E Report (Sept. 26, 2022), https://www.velaw.com/insights/doj-chooses-sticks-over-carrots-three-reasons-why-changes-to-dojs-corporate-enforcement-policy-may-chill-cooperation-by-companies/.
3See, e.g., Memorandum from Lisa O. Monaco, Deputy Att’y Gen., U.S. Dep’t of Just., to Assistant Att’y Gen., Crim. Div., et al., Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies (Oct. 28, 2021), https://www.justice.gov/d9/pages/attachments/2021/10/28/2021.10.28_dag_memo_re_corporate_enforcement.pdf; see also Memorandum from Lisa O. Monaco, Deputy Att’y Gen., U.S. Dep’t of Justice, to Assistant Att’y Gen., Crim. Div., et al., Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (Sept. 15, 2022), https://www.justice.gov/opa/speech/file/1535301/download.
4Id.
5Memorandum from Lisa O. Monaco, Deputy Att’y Gen., U.S. Dep’t of Justice, to Assistant Att’y Gen., Crim. Div., et al., Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies (Oct. 28, 2021), https://www.justice.gov/d9/pages/attachments/2021/10/28/2021.10.28_dag_memo_re_corporate_enforcement.pdf.
6Kenneth A. Polite Jr., Assistant Attorney General, U.S. Dep’t of Just., Remarks at NYU Law’s Program on Corporate Compliance and Enforcement (PCCE) (Mar. 25, 2022), https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-remarks-nyu-law-s-program-corporate.
7Press Release, U.S. Dep’t of Just., ABB Agrees to Pay Over $315 Million to Resolve Coordinated Global Foreign Bribery Case (Dec. 2, 2022), https://www.justice.gov/opa/pr/abb-agrees-pay-over-315-million-resolve-coordinated-global-foreign-bribery-case.
8Press Release, U.S. Dep’t of Just., Credit Suisse Resolves Fraudulent Mozambique Loan Case in $547 Million Coordinated Global Resolution (Oct. 19, 2021), https://www.justice.gov/opa/pr/credit-suisse-resolves-fraudulent-mozambique-loan-case-547-million-coordinated-global.
9Nicole M. Argentieri, Acting Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Just., Remarks at the 39th International Conference on the Foreign Corrupt Practices Act (Dec. 1, 2022), https://www.justice.gov/opa/speech/acting-principal-deputy-assistant-attorney-general-nicole-m-argentieri-delivers-remarks.