Deputy Attorney General Monaco Releases A Memo Titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group”
Last week Deputy Attorney General Lisa Monaco issued a 15 page memo to DOJ personnel titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group.” (See here for Monaco’s related speech and see here for a recent speech by Assistant Attorney General Kenneth Polite which discussed, in part, the memo as well).
A future post will provide analysis and commentary regarding the memo, but first this post summarizes the memo.
Richard Shine’s 1982 Lecture – “Enforcement Of The FCPA By The Department Of Justice”
The year was 1982 and Richard Shine was Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit). Shine gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).
Three things stand out from Shine’s lecture.
First, the lecture is populated with references to the FCPA’s legislative history. On one level, this is not surprising given that in 1982 the DOJ was likely still finding its way as to the FCPA and its enforcement and it is logical that the legislative history – which evidences Congressional intent – would be a guide.
Assistant AG Polite Talks Compliance And Related Topics
Recently DOJ Criminal Division Assistant Attorney General Kenneth Polite delivered this speech.
He focused on the following topics: how the DOJ evaluates “corporate compliance programs to ensure that companies are designing and implementing effective compliance systems and controls, creating a culture of compliance, and promoting ethical values,” corporate monitors, DOJ compliance related resources, and the consequences for a company violating a DOJ resolution agreement.
Polite also announced that he has asked his “team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law (based on the nature of the legal violation that gave rise to the resolution, as relevant), and is functioning effectively.”
During his speech, Polite used the words or concepts “detect and prevent” several times. Keep in mind however, that there is no relevant legal standard that requires corporate compliance programs to “detect and prevent” violations of law. For this reason among others, Polite’s policy suggestion is off-target.
Friday Roundup
Overheard, interesting and for the reading stack.
It’s all here in the Friday roundup.
Overheard
In connection with the ongoing saga of Ericsson (see here for a recent post) during a recent investor conference call, E. Borje Ekholm (President, CEO and Director) stated:
Attorney General Garland On “Force-Multipliers” And Other Topics
Yesterday, Attorney General Merrick Garland delivered this speech (virtually) to the ABA Institute on White Collar Crime.
In the speech, Garland discussed many of the same topics that DOJ enforcement officials have been talking about for 10-15 years such as how prosecution of corporate crime is a DOJ priority, the importance of individual accountability, and corporate cooperation.
Garland began his speech as follows: