Making Provisions — Responding to the DOJ’s Expansion of Its Corporate Enforcement Policy and the Monaco Memo

The updated policy and the memo aim to incentivize even more robust compliance programs and sustainable culture of compliance on the front-end, prevent misconduct, and require even more robust cooperation and remediation on the back-end, if a crime occurs. Notably, both emphasized the importance of cooperation, and that the DOJ will now take a much firmer stance on the considerations involved in determining whether cooperation credit will be awarded (vs. the former expectations that certain disclosures would be sufficient to obtain cooperation credit). In addition, the Memo aims to provide additional guidance to prosecutors to ensure individual and corporate accountability.

We believe that there are five key themes that the DoJ will pay particular attention to in the future – in particular, as the DOJ is broadening the scope of the policy to all corporate crimes that the DOJ’s Criminal Division is taking care of:

  1. Focus on immediate and voluntary self-disclosure and case resolution
  2. Taking effective prevention efforts seriously
  3. Being extraordinarily engaged and prepared for the worst case across all communication channels
  4. Making individual accountability key
  5. Focusing on timely and adequate impact of compliance monitors