Last year, Deputy Attorney General Lisa Monaco gave a speech promising a crackdown on corporate criminals, especially repeat offenders. That gave rise to hopes that the Justice Department, after having gone soft on corporate prosecutions during the Trump years, would return to a more aggressive stance.
After months of consultation with various parties, Monaco has just given another speech to signal what is coming next. The new approach, explained in more detail in a memo to federal prosecutors, has some laudable features, but it does not go far enough in bringing down the hammer on rogue companies and their executives.
For example, Monaco’s 2021 statement included a vow to take into account a company’s past behavior when deciding on a prosecution strategy. As someone who spends his time documenting corporate non-compliance, I was eager to see DOJ take a harder line on companies that break the law over and over again.
That commitment remains in the new policy, but there are hedges. Monaco writes: “Not all instances of prior misconduct, however, are equally relevant or probative. To that end, prosecutors should consider the form of prior resolution and the associated sanctions or penalties, as well as the elapsed time between the instant misconduct, the prior resolution, and the conduct underlying the prior resolution.”
Monaco specifies that criminal offenses that occurred more than ten years ago or civil offenses more than five years old can be given less weight. But then she acknowledges that “depending on the facts of the particular case, even if it falls outside these time periods, repeated misconduct may be indicative of a corporation that operates without an appropriate compliance culture or institutional safeguards.”
This “on the one hand, on the other hand” language sends a mixed message. It would have been preferable to tell prosecutors to give serious consideration to previous bad acts and leave it at that.
Then there’s the issue of individual accountability. Now, as last year, Monaco encouraged prosecutors to bring cases against culpable corporate executives and to expedite the handling of those cases. That sounds fine, but the main way Monaco wants to accomplish this is by giving corporations incentives to cooperate more thoroughly with investigations.
Getting companies to turn in wrongdoers is a good idea, but Monaco’s approach could come at too high a cost. She states that, “absent the presence of aggravating factors, the Department will not seek a guilty plea where a corporation has voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated the criminal conduct.” Her memo also states that the imposition of an independent compliance monitor need not occur when a cooperating company “demonstrates that it has implemented and tested an effective compliance program.”
Keep in mind that the kind of cases involved here are mainly ones in which an unscrupulous executive was taking actions that benefited the company and that should have been prevented by internal controls. Such corporations need to be held fully accountable and put under close supervision.
They also should not be allowed to go on receiving special deals such as non-prosecution and deferred prosecution agreements—sometimes more than once. Rather than calling for an end to these practices, Monaco weakly states that multiple deals are “generally disfavored” and goes on to dilute that position even more by suggesting that everything should be done to incentivize voluntary disclosure.
On the plus side, Monaco’s policy would pressure corporations to claw back compensation paid to executives who engage in misconduct. In too many cases, these corrupt individuals have been allowed to keep lavish pay and benefit packages—and often the company would pay their legal expenses.
Overall, Monaco puts too much emphasis on the carrot and not enough on the stick. Corrupt corporations have been treated leniently for too long. Now is the time for a tougher approach.