DOJ's revised approach to compliance urges cooperation, investment

Disclosure, cooperation and remediation are essential to successfully resolving white-collar criminal cases, according to prosecutors from the U.S. Department of Justice who outlined the DOJ’s enforcement priorities last week in the White Collar Crime Town Hall at the ABA 15th Annual CJS Fall Institute in Washington, D.C.

The conference was sponsored by the ABA Criminal Justice Section.

Noting DOJ Deputy Attorney General Lisa O. Monaco’s announcement earlier this fall of the department’s renewed commitment to and investment in enforcement, the panelists discussed how they apply this approach to antitrust, fraud and other white-collar investigations, including the impact on investigations of individual and corporate wrongdoing.

Allan Medina, senior deputy chief in the Criminal Division, Fraud Section, said the unit’s increased use of data has dramatically increased its efficiency. “We rely heavily on data,” he said, adding, “the idea of being reactive rather than proactive is a thing of the past. We have put a heightened emphasis on doing what we can to investigate cases quicker, to identify them ahead of time before the damage is done.”

“The landscape has changed and it’s something we have been investing in,” added Emma Burnham, acting chief in the Antitrust Division. “We have more diversity of cases now than we used to,” which can be challenging, she said. One of the biggest positive changes has been the increased support from law enforcement partners from the Internal Revenue Service and U.S. Postal Service, for instance, “which allows us to be much more creative and proactive and to move more quickly.”

Jon Hooks, acting chief of the Fraud, Public Corruption and Civil Rights Section in the U.S. Attorney’s office in Washington, said evolving communications have made the office more effective. “With domestic offenses, we have been able to move quicker because of the increased availability of certain types of evidence. People communicate more often and in writing through text messages and email … This can be really devastating evidence at trial that we’re able to gather and move quickly to get the first subject in the door.”

Discussing individual accountability and corporate responsibility, the panelists said strong compliance plans are critical to companies seeking to avoid improper risky behavior or to minimize prosecution.

“What did the company do once they identified an issue? Did they revamp the compliance program? Did they do something else to ensure the situation doesn’t happen again? Answers to these questions are key to how cases can be satisfactorily resolved for all parties,” Medina said.

“We now are specializing in this remediation piece,” he said. “Information gathering is great. It’s extremely important to hold individuals and companies accountable, but how do we avoid what happened in the first place so it never happens again? Disclosure, cooperation and remediation all have to happen without aggravating factors like the sharing of profits at a high level,” he said.

DOJ’s revised approach to compliance, adopted in 2019, encourages companies to invest in antitrust compliance, Burnham said. “We have taken steps to ensure our prosecutors are well trained in assessing compliance policies. There is a 17-page guidance document for prosecutors and for companies, so their compliance officers are aware of what DOJ is looking for,” she said. “We always ask for compliance presentations to make sure companies are appropriately incentivized to make these investments.”

As defense counsel, Christine Wong, partner at Morrison & Foerster in San Francisco, said one of the most important aspects of her job is determining when to interject herself in a case. “One of the interesting things about being a white-collar defense lawyer representing corporations is how much we’re involved long before we meet with prosecutors. We’re involved in prevention and compliance efforts,” she said. “We’re trying to prevent the alleged wrongdoing, and we often find ourselves in parallel or even ahead of folks in the government.”

Wong added that the sophistication at DOJ has ramped up with respect to compliance programs. “Slapping a logo on a code of conduct from the internet isn’t going to fly. A well-resourced corporation is expected to have a well-resourced compliance program ... one that has taken the time to assess what the risks are,” she said.

“As a compliance officer, you must make sure you aren’t siloed, making sure that people take you seriously, that you have a seat in the board room, are in board discussions and report to the board. DOJ’s statements seem very intentional, and officers can show the board what is expected,” Wong said.

Nathaniel B. Edmonds, partner, Litigation Department for Paul Hastings in Washington, D.C., moderated the panel.

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