On October 28, 2021, the Deputy Attorney General of the Department of Justice of the United States (DOJ), Ms. Lisa O. Monaco, announced the DOJ’s three priorities on corporate criminal enforcement, which has been an increasing national security interest of the United States.
First, in connection to corporate malfeasance, Ms. Monaco emphasized that “[w]hile the priority remains individual accountability, where appropriate, we will not hesitate to hold companies accountable.” She stressed the relevance of the company’s compliance programs and behavior by stating that “[a] corporate culture that fails to hold individuals accountable, or fails to invest in compliance — or worse, that thumbs its nose at compliance — leads to bad results.”
The Deputy Attorney General also added that the DOJ would restore its prior guidance covered in the Yates Memorandum and require companies to “identify all individuals involved in the misconduct, regardless of their position, status or seniority” for companies to be eligible for any cooperation credit. Thus, “[i]t will no longer be sufficient for companies to limit disclosures to those [individuals] they assess to be ‛substantially involved’ in the misconduct.”
Second, the DOJ made clear that “all prior misconduct [either criminal, civil or regulatory] needs to be evaluated when it comes to decisions about the proper resolution with a company, whether or not that misconduct is similar to the conduct at issue in a particular investigation.” This is because such record “speaks directly to a company’s overall commitment to compliance programs and the appropriate culture to disincentivize criminal activity.”
In addition, the Deputy Attorney General clarified that DOJ prosecutors must also weigh what has happened outside the DOJ, that is to say, “whether this company was prosecuted by another country or state, or whether this company has a history of running afoul of regulators.” In such context, the behavior, the investigations, and the records that companies have had in Argentina would be of great importance whenever charging or settling with a US-based company with business in Argentina.
Third, Ms. Monaco added that “the department is free to require the imposition of independent monitors whenever it is appropriate to do so in order to satisfy our prosecutors that a company is living up to its compliance and disclosure obligations under the DPA or NPA.” Therefore, those times when monitorship would be the exception are long gone.
More changes are expected to come soon since the DOJ’s Deputy Attorney General made clear those were the first steps towards reinforcing the fight against white-collar crime. To that end, a Corporate Crime Advisory Group was set up to review the current enforcement situation and develop recommendations and propose revisions to the DOJ’s policies on corporate criminal enforcement.
International companies operating in Argentina and all throughout Latin America, which are exposed to the US Foreign Corrupt Practices Act (FCPA) and to local anti-corruption regulations such as Argentine Anti-corruption Law No. 27,401, should be mindful of the enforcement policies enacted by authorities in the region since cross-border enforcement remains an increasing trend.