Assistant Attorney General Kenneth A. Polite, Jr. Announces Changes to Department of Justice Criminal Division’s Corporate Enforcement Policy
On January 17, 2023, Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. (AAG Polite) announced revisions to the Department of Justice Criminal Division’s Corporate Enforcement Policy.1 The Corporate Enforcement Policy––which was formerly known as the FCPA Corporate Enforcement Policy—revises the FCPA Corporate Enforcement Policy and expressly expands its application to all corporate criminal matters handled by the Criminal Division.2 The revisions are aimed at further incentivizing companies to develop and maintain robust corporate compliance programs, to swiftly voluntarily self-disclose suspected corporate misconduct, to cooperate fully with government investigations, and to timely and appropriately remediate.
Under the revised Corporate Enforcement Policy:
- Companies that voluntarily self-disclose misconduct will be eligible for declinations, even where aggravating circumstances that may ordinarily warrant a criminal prosecution are present, provided specific conditions are met.
- Companies that do not voluntarily self-disclose, but engage in extraordinary cooperation and remediation, will be eligible for a fine reduction of up to 50% from the low end of the U.S. Sentencing Guidelines (“Guidelines”) range. However, there will be no presumption of entitlement to such a reduction, and the most substantial reductions will be reserved for only the “most extraordinary levels” of cooperation and remediation. Recidivists will be eligible for a similar reduction, but generally not from the low end of the Guidelines range.
- For companies that voluntarily self-disclose misconduct, fully cooperate with an investigation, and timely and appropriately remediate, but do not receive a declination under the Corporate Enforcement Policy, DOJ will recommend a reduction in the company’s fine of 50% to 75% from the low end of the Guidelines range, provided the company is not a criminal recidivist. Recidivists will be eligible for a similar reduction, but generally not from the low end of the range.
Throughout his remarks, AAG Polite reiterated that the Corporate Enforcement Policy aligns with the Division’s top priority, as stated in prior DOJ memoranda and public announcements: ensuring individual accountability for corporate wrongdoing, as the Division is best positioned to secure such individual accountability when companies proactively bring corporate misconduct to light.
The Corporate Enforcement Policy originally was introduced as a pilot program specific to the Division’s Foreign Corrupt Practices Act (FCPA) Unit in April 2016. Under the pilot program, companies were incentivized to voluntarily self-disclose suspected misconduct, fully cooperate with any resulting DOJ investigation, timely remediate any weaknesses, and disgorge any profits from the unlawful conduct in exchange for potential charging and/or sentencing leniency. By November 2017, this pilot program became the FCPA Unit’s formal policy for corporate enforcement.3 And in 2018, the Division incorporated these principles into the Justice Manual at Section 9-47.120, which forms today’s Corporate Enforcement Policy.4
Speaking from a podium at the Georgetown University Law Center in Washington, D.C., AAG Polite announced what he branded as “the first significant changes to the Criminal Division’s Corporate Enforcement Policy since 2017,” changes that he maintained would incentivize companies to “do the right thing” in self-disclosing alleged misconduct and cooperating with DOJ investigations.5
AAG Polite outlined three primary changes to the Corporate Enforcement Policy, as follows.
1. Expanded Eligibility for Declinations Even with Aggravating Circumstances
The Corporate Enforcement Policy continues to attempt to incentivize voluntary self-disclosures from companies by asserting that when a company has voluntarily self-disclosed misconduct to the Criminal Division, fully cooperated, and timely and appropriately remediated, there is a presumption that the company will receive a declination (with required disgorgement of profits obtained from the unlawful conduct), absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. AAG Polite provided a non-exhaustive list of examples of such aggravating circumstances (also set forth in the Corporate Enforcement Policy) that included egregious or pervasive misconduct; involvement by executive management; significant resulting corporate profits; or criminal recidivism.
Under the revised Corporate Enforcement Policy, DOJ expanded eligibility for declinations after voluntary disclosure. Specifically, DOJ may determine that a corporate declination is appropriate despite the existence of aggravating circumstances if the following three conditions are met:
- The company voluntarily disclosed immediately upon becoming aware of the allegation of misconduct;
- At the time of the misconduct and disclosure, the company had in place an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the voluntary self-disclosure; and
- The company engaged in “extraordinary” cooperation and remediation.
Although this revision to the Corporate Enforcement Policy may appear to mark a significant policy change, DOJ has in the past awarded Corporate Enforcement Policy declinations where aggravating circumstances appear to have been present. For example, in 2019, DOJ declined prosecution of Cognizant Technology Solutions Corporation, “[d]espite the fact that certain members of senior management” participated in and directed the conduct at issue.6 Likewise, in 2018, DOJ declined prosecution of Insurance Company of Barbados Limited, notwithstanding the “high-level involvement of corporate officers in the misconduct.” 7 Nonetheless, with this announcement, the Criminal Division appears to have formalized eligibility for obtaining a declination where aggravating circumstances are present and to have established specific, if demanding, requirements for eligibility. The bar for obtaining a declination with aggravating circumstances will be considerable, given that disclosure must be “immediate” and cooperation and remediation must be “extraordinary.” (See below for further discussion of what may constitute “extraordinary” cooperation and remediation)
2. Increased Potential Credit for Voluntary Self-Disclosures that Do Not Receive a Declination
AAG Polite also announced that if a company voluntarily self-discloses misconduct, fully cooperates, and timely and appropriately remediates, but does not receive a declination under the Corporate Enforcement Policy, DOJ will recommend a reduction of at least 50% and up to 75% off of the low end of the Guidelines range as part of the criminal resolution—provided that the company is not a criminal recidivist; if a company is a recidivist, DOJ will still apply a 50% to 75% reduction, but generally not from the low end of the Guidelines range. Such a situation might occur where a company voluntarily self-discloses misconduct, DOJ determines that aggravating circumstances are present, and DOJ determines that the company has failed to meet the specific conditions required to obtain a declination.
Previously, the reduction available in such circumstances was 50% off of the low end of the Guidelines range. The revised policy also added that DOJ will likely not require a corporate guilty plea in such circumstances, absent particularly egregious aggravating circumstances.
3. Increased Potential Credit for Companies that Do Not Voluntarily Self-Disclose but Engage in Extraordinary Cooperation and Remediation
AAG Polite also announced that, even in instances where companies do not voluntarily self-disclose, prosecutors will have a greater range of options to incentivize those companies’ “extraordinary” cooperation and remediation. The revised Corporate Enforcement Policy provides that if a company is not a criminal recidivist and provides “extraordinary” cooperation and remediation, it may receive a recommended fine reduction of up to 50% off of the low end of the Guidelines range. This represents a significant change from the prior Corporate Enforcement Policy, which provided for a maximum penalty reduction of 25% off of the low end of the Guidelines range, absent voluntary self-disclosure.
AAG Polite quickly clarified that companies are not presumptively entitled to this reduction, which he framed as the maximum reduction available only for the best corporate cooperators and remediators. Instead, every company under investigation “starts at zero” and earns credit for remediation and cooperation based on degree. Only those non-self-disclosing companies that are truly extraordinary in their cooperation and remediation efforts will receive this credit.
What Is “Extraordinary” Cooperation and Remediation?
Near the close of his remarks, AAG Polite addressed a resultant question: what might make cooperation and remediation “extraordinary”? He explained that “extraordinary” cooperation and remediation may differ from “full” cooperation and remediation more in degree than in kind, noting that immediacy, consistency, degree, and impact would be significant concepts in the Division’s calculation.
For example, in terms of cooperation, AAG Polite highlighted the importance of collaboration with individuals in the company, consistent candor and truthfulness, obtaining evidence that might not otherwise be attainable (e.g., obtaining information from abroad or recording conversations), making witnesses available to testify at trial, and providing evidence that might lead to additional individual charges and convictions. He did not, however, provide examples of “extraordinary” remediation.
Key Considerations for Companies
In light of the Corporate Enforcement Policy’s expansion beyond the FCPA to virtually all forms of corporate misconduct that are investigated by the Criminal Division of DOJ, corporate leaders from all industries should take heed of the AAG’s remarks and DOJ’s ongoing corporate enforcement approach.
- As WilmerHale has advised in prior Client Alerts, companies, their directors and officers, and their internal and external legal counsel should understand that although DOJ’s focus remains squarely on individual accountability, the Corporate Enforcement Policy uses both carrots and sticks to incentivize companies to partner in that aim.
- DOJ continues to emphasize the importance of companies voluntarily self-disclosing misconduct to support its stated first priority of prosecuting individual wrongdoing and has formally extended potential declinations in the wake of voluntary self-disclosures even in the presence of aggravating circumstances— although now such declinations are only available in situations where the following high bars are met: (1) the company made “immediate” disclosure upon identification of misconduct; (2) the company engaged in “extraordinary” cooperation and remediation; and (3) the company had in place an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the voluntary self-disclosure. As such, companies and their counsel should carefully—and quickly—evaluate the benefits of voluntary self-disclosure upon the identification of possible misconduct and weigh these benefits against the costs and pitfalls of inviting a potential DOJ investigation, as well as potential investigation by other authorities that do not offer similar incentives or have similar policies.
- Likewise, as DOJ will consider the sufficiency of corporate compliance programs when determining leniency in situations where a company has made a voluntary self-disclosure and aggravating circumstances are present, companies should conduct periodic risk assessments and carefully structure compliance programs in accordance with the Guidelines elements of an effective corporate compliance program.8 Companies should also consider the factors set out in DOJ’s September 2022 Further Revisions to Corporate Criminal Enforcement Policies Following Discussions With Corporate Crime Advisory Group, as discussed in a WilmerHale Client Alert. Companies with well-designed, tested, and effective compliance programs will be better positioned to detect individual misconduct at the outset, may be eligible for declinations even where aggravating circumstances exist, and will be better positioned to avoid compliance monitorships upon resolution.
- Given the considerable favorable consequences of being awarded “extraordinary” cooperation and remediation credit (i.e., up to 50% credit in non-voluntary self-disclosure cases and the possibility of, in voluntary self-disclosure cases, a declination in the face of aggravating circumstances), the bounds of what DOJ may consider “extraordinary” will become quite significant. The favorable consequences may also incentivize corporate leadership to take the most cooperative posture possible with DOJ amidst any investigation and to implement and test remediation steps early in the investigation. Companies should think creatively at the outset of any investigation about how best to cooperate and communicate with DOJ. Presumably, watching new DOJ settlements will assist in identifying DOJ’s expectations for “extraordinary” cooperation and remediation. There will no doubt be challenges in balancing corporate needs and meeting DOJ expectations.
- Other U.S. authorities, like the Securities and Exchange Commission, do not yet offer this kind of regime for enforcement transparency or penalty credit. Nor do foreign enforcement authorities. Therefore, DOJ’s continued efforts to encourage voluntary disclosures and corporate cooperation may create complications for companies that face regulation and enforcement across federal agencies and internationally.
- Although the requirements for leniency have become somewhat more formalized, as always, DOJ enjoys significant discretion in its investigating, charging, and sentencing decisions—almost always because the devil is in the details in determining a company’s eligibility for leniency under the Corporate Enforcement Policy.
With this expansion, the Corporate Enforcement Policy now applies not just to FCPA cases, but also to all corporate criminal matters handled by the Criminal Division, which includes cases handled by the Money Laundering and Asset Recovery Section and the Fraud Section (which includes the FCPA Unit, Healthcare Frauds Unit, and Market Integrity and Major Frauds Unit).
DOJ, Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy, JUSTICE MANUAL § 9-47.120 (2023).
In March, April, and November of 2019, DOJ announced a series of smaller changes to the Corporate Enforcement Policy.