The Justice Department released a new corporate crime enforcement playbook that many feel raises the stakes. It represents the Biden administration’s initial and substantive revisions to how prosecutors handle white-collar criminal investigations. Of particular interest are the options that allow corporations to step forward and potentially undercut the department’s objective.
Many see the recently released “playbook” as the DOJ raising the stakes for companies self-reporting white-collar infractions. Strategies seem to focus on providing incentives for confessing misconduct and giving prosecutors significant leeway.
Speeding up the process
Of particular note are steps to accelerate the indictment process against senior-level management. Immediate and voluntarily providing the information could result in organizations not facing guilty pleas or compliance monitoring. Conversely, prosecutors could have more tools and discretion to analyze how timely and extensive a “cooperation credit” should be.
Corporate lawyers are likely to herald the process of prosecutors evaluating a company’s history of misconduct while finding resolutions to new investigations. October saw a representative of the DOJ announcing last October that the “full range” of previous violations would be in play. However, the finalized playbook will now focus on crimes committed at least ten years earlier, not be considered significant nor relevant to the current alleged infractions.
However, new language that leaves little room for interpretation caught the attention of attorneys. All DOJ criminal prosecuting components must review or draft from scratch their specific policies on corporate self-disclosure. US attorneys’ offices must include certain expectations on timing, detailed information turned over, and businesses receiving benefits for staying within those standards.
While the devil is in the details of these new “core principles,” the potential for variation, if not confusion, for companies that do business nationwide. It potentially raises the possibility of several conflicting and confusing policies that lack clarity and create reluctance for companies to come forward.