On Friday, October 28, 2021, the U.S. Department of Justice (“DOJ”) announced sweeping new changes that essentially tighten the enforcement reins by making it more difficult for corporations implicated in criminal misconduct to qualify for leniency. Among the changes announced by Lisa Monaco during a keynote address at the American Bar Association’s 36th National Institute on White Collar Crime is a shift by the DOJ to ensure that individuals and not just institutions are held responsible for their actions. 

Additionally, Monaco announced that prosecutors would consider all prior wrongdoing when deciding how to approach novel allegations of misconduct by the same organization. This is a significant departure from previous practice, which allowed prosecutors to review only factually similar cases in relation to the probe at issue. Most significantly however, the DOJ announced that corporations will no longer qualify for leniency programs in the form of deferred prosecution agreements (“DPAs”) and other extra-judicial methods of resolutions unless those corporations provide information on all employees and executives believed to have participated in the underlying misconduct. The DOJ further announced that extensive additional inquiry would be made into companies’ commitment to the implementation of remedial measures consistent with any DPAs reached with the federal government. As a testament to its new approach, in recent months, the DOJ informed two companies—Swedish telecom manufacturer Ericsson AB and British Bank NatWest Group PLC—that they had breached the terms of their DPAs with the DOJ. 

The DOJ’s series of announcements with respect to organizational misconduct and individual accountability seem to be a prelude to updates to the Justice Manual and related documents—including the proverbial Bible of compliance practice—the DOJ’s Civil Division Guidelines for the Evaluation of Corporate Compliance Programs. As such, compliance practitioners should closely monitor regulatory developments and enforcement patterns by the DOJ and incorporate any lessons learned from companies operating in similar industries into their own programs.  

The key takeaway here seems to be that the newly constituted DOJ under the leadership of Merrick Garland and Lisa Monaco will largely abandon the fragmented and inconsistent approach taken by the prior Administration with respect to allegations of corporate wrongdoing.  The potential for enhanced scrutiny and emphasis on individual accountability make it extremely important for organizations not already convinced that compliance is an integral part of a company’s business operations to reconsider their approach and invest appropriate resources—financial, human, technological, and otherwise—into their operations. Federal government enforcement will be vigorous and unforgiving. The onus is on organizations of all shapes and sizes to be proactive about detecting, deterring, and robustly reporting all potential for misconduct.