Another week, another speech by Assistant Attorney General Kenneth Polite.
In the speech, Polite told an audience of white collar criminal professionals not to” fall victim to recency bias” (even though of course the DOJ facilitates it) and served up a word salad of ambiguous terms and concepts.
I have been reading speeches by DOJ enforcement officials for approximately 15 years and Polite’s speech is one of the worst I have encountered as it is mostly just a play on words.
Recently Deputy Attorney General Lisa Monaco delivered this speech at the American Bar Association National Institute on White Collar Crime.
Topics discussed included: “inspiring a culture of compliance,” “promoting compliance through compensation and clawback programs,” and “accountability.”
Monaco began her speech as follows:
Last week, Kenneth Polite (DOJ Assistant Attorney General -Criminal Division) gave this speech in which he called prosecutors “community problem-solvers” and announced (yet additional) changes to DOJ policy.
Specifically, Polite announced “significant changes” to how the DOJ “consider[s] a corporation’s approach to the use of personal devices as well as various communications platforms and messaging applications, including those offering ephemeral messaging.”
In addition, Polite described how the DOJ has “updated its policies concerning corporate compensation systems” and issued a “revised memorandum on the selection of monitors in Criminal Division matters” including that “any submission of a monitor candidate by the company and selection of a monitor candidate by the Criminal Division should be made in keeping with the department’s commitment to diversity, equity, and inclusion.”
I have been reading speeches by Department of Justice enforcement officials on white collar crime, compliance, and related issues for approximately 15 years.
I take many of these speeches with a grain of salt because more often than not, the substance of the speech have been articulated before and because I am not seeking to actively market DOJ policy as a way to expand my services (as so many law firms and others do).
Many of these speeches have the look and feel on an “infomercial” in which a DOJ official is trying to market and sell its latest widget.
So it was with this recent speech by Deputy Assistant Attorney General Lisa Miller Delivers in which she stated that the “carrots we offer have never been juicer.”
For years, approximately the last 15-20 years, the Department of Justice has wanted business organizations under Foreign Corrupt Practices Act (and other scrutiny) to voluntarily disclose conduct in violation of the law (or mere potential violation of the law).
That the DOJ has made various attempts to encourage voluntary disclosure over the years – and every few years seems to tweak its voluntary disclosure and related corporate criminal enforcement policy – is seemingly an indication that its previous policies were not accomplishing the intended results.
As highlighted in this post, last week the DOJ announced revisions to its 2017 Corporate Enforcement Policy (a policy document which encouraged voluntary disclosure and built upon the 2016 FCPA Pilot Program). The revisions were in addition to revisions to the CEP released in early 2019 (see here) as well as late 2019 (see here).
This post takes a trip down memory lane and highlights various speeches by DOJ officials since at least 2006 extoling the virtues of voluntary disclosures.
