CEP Revisions Incentivize “Extraordinary” Corporate Cooperation

Key Takeaways:

  • DOJ revised its Corporate Enforcement Policy (CEP) to further incentivize robust voluntary disclosures by corporations when they discover misconduct.
  • Even when aggravating circumstances would otherwise warrant criminal resolution, prosecutors will now have discretion to decline to prosecute when a company provides extraordinary cooperation.
  • Recognizing the unique opportunity to encourage disclosure and remediation in M&A transactions, DOJ took the opportunity to highlight particular benefits available in that context.…
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The DOJ Gets the Green Light in its Latest No-Poach Criminal Prosecution

It has been a tumultuous year for the Department of Justice (“DOJ”) and its recent no-poach criminal prosecution strategy.  No-poach agreements, which are arrangements between companies that place restrictions on the hiring of each other’s employees, have long been viewed as anticompetitive, as they have the potential to restrict employee mobility and wages in competitive markets. Historically, anyone challenging these agreements—including workers and the DOJ alike—did so through civil claims under the Sherman Act.… More

Southern District of New York Holds that an Explicit Quid Pro Quo Is an Essential Element of Bribery and Fraud in Campaign Fundraising-Related Public Corruption Prosecutions

Earlier this week, the Southern District of New York dismissed bribery and honest services wire fraud charges brought against New York’s former lieutenant governor, Brian Benjamin, based upon the Indictment’s failure to allege an explicit quid pro quo arrangement with respect to campaign contributions, instead of an agreement by implication.   The decision marks the first time that a New York federal court has held that an express agreement is required before an individual can be convicted of bribery and wire fraud in a campaign contribution case,… More

DOJ’s New Guidelines on Repeat Corporate Misconduct: Do They Have Real Teeth?

On October 28, 2021, Deputy Attorney General Lisa Monaco released a memo setting out “Initial Revisions to Corporate Criminal Enforcement Policies.” The memo indicated that the Department of Justice would place greater emphasis on a corporation’s “history of misconduct” in reaching determinations about whether to criminally charge a corporation. Noting that past misconduct is potentially indicative of the strength of internal controls to prevent criminal activity,… More

The DOJ, SEC, Insider Trading, and Data Analysis

A year ago, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) heralded data analytics in announcing parallel insider trading actions against a senior executive at a pharmaceutical company (Viatris Inc.), formerly known as Mylan N.V. (“Mylan”). The SEC asserted that “efforts to conceal the scheme through secure messaging apps and foreign cash payments were unavailing, as this case highlights the agency’s ability to use sophisticated data analysis to detect suspicious trading patterns and identify the traders behind them.”

Last year’s case was against the alleged tippee,… More

DOJ’s Settlement Imposes Legal Process Compliance Monitor, Highlighting the Government’s Increased Focus on Data Preservation

Google will spend the next three years with an independent compliance monitor scrutinizing its process for responding to warrants and other government data requests. This and other requirements are part of a settlement agreement with Google, announced by the Department of Justice (“DOJ”) on October 25, 2022, to resolve a four-year long dispute over lost data responsive to a DOJ search warrant.

The dispute dates back to a warrant the DOJ obtained in 2016 in the U.S.… More

Boeing’s Deferred Prosecution Agreement In Question After Court Rules 737 Max Crash Victims’ Families May Assert Rights Under The Crime Victims’ Rights Act

A recent ruling from a federal district judge in Texas has called into question the finality of deferred prosecution agreements.  Deferred prosecution agreements are negotiated and entered into by the government and criminal defendants (typically corporations) and allow the defendant to avoid a criminal conviction.  In exchange, defendants are often required to accept responsibility for charges, pay fines, cooperate with ongoing investigations, and engage in ongoing compliance processes,… More

Companies Should Beware of Employees Texting Business Communications

Text messaging is convenient.  It is an informal and instant mode of communication now available through numerous apps, which allow an individual to use their synced phone, tablet, and computer to quickly fire off messages.  It’s no wonder that text messaging has extended beyond the realm of friends and family, taking hold in our daily business communications.

However, intra-company text messages and other off-channel business communications have drawn scrutiny from the federal government because they undermine a company’s ability to maintain effective recordkeeping.… More

DOJ Updates Policies on Corporate Ethics and Compliance

Last week, Deputy Attorney General Lisa O. Monaco delivered remarks on corporate criminal enforcement, announcing revisions to DOJ’s policies for addressing corporate ethics and compliance matters. These changes reflect an increased focus on holding individuals accountable for corporate wrongdoing, guidance on handling corporate recidivism, further transparency regarding the appropriateness and necessity of monitorships; incentives for voluntary self-disclosure of misconduct; and a recognition of compensation related incentives to garner a corporate culture of compliance.… More

DOJ Announces Increased Focus on Digital Asset Crime with Newly Formed Digital Asset Coordinator Network

On Friday, September 16, 2022, the Department of Justice (“DOJ”) announced a formalized focus on digital asset abuse by publically releasing a 46 page report on the Role of Law Enforcement in Detecting, Investigating, and Prosecuting Criminal Activity Related to Digital Assets (the “Report”). DOJ describes this Report as a “companion” to its other recent report, How to Strengthen International Law Enforcement Cooperation For Detecting, Investigating And Prosecuting Criminal Activity Related To Digital Assets,… More