Thin Gruel: Prosecutors’ discretion reassures DOJ’s new policy | Alston & Bird



It is important to know what is coming, even if what is coming is cold comfort. Our white-collar, government and internal investigations team read between the lines recent statements from key Justice Department officials elaborating on recent changes in corporate law enforcement policy.

  • Justice Department officials suggest prosecutorial discretion will temper a stricter approach to corporate criminal law enforcement
  • UK Serious Fraud Office reports more nuanced approach
  • It is essential to ensure the existence of strong and effective compliance programs

In recent days, Deputy Attorney General Kenneth Polite and other key officials in the Justice Department’s Criminal Division (DOJ) have amplified Deputy Attorney General Lisa Monaco’s announcement on October 28, 2021, of a DOJ’s tougher approach to corporate criminal law enforcement. As the speakers sought to reassure the business community of the potentially significant impact of this new approach, their remarks boil down to a reiteration that prosecutors are and will continue to exercise their discretion when making decisions about the matter. ‘execution.

Executors’ comments

Polite Deputy Attorney General at the 38th ICA International FCPA Conference

On December 1, 2021, Deputy Attorney General Polite reaffirmed that the repression of criminal offenses by companies was among the main priorities of the Ministry of Justice. He acknowledged the “concern” among members of the business community over DOJ’s intention to consider the entire criminal, civil and regulatory record of a company under scrutiny and said explained that while the DOJ would want “a full picture” of the company, the extent to which that full picture leads to the DOJ’s decision will be a “discretionary” matter for prosecutors. Polite issued a similar note regarding the reports of companies subject to postponement and non-prosecution agreements, encouraging them to sin on the side of disclosing new misconduct to the DOJ, and noting that all information disclosed by a company will not trigger the DOJ’s attention.

Other DOJ officials report roster

Other key players in corporate crime repression echoed the same theme in their remarks last week. On December 3, 2021, at the 28th Annual Atlanta Bar Association Seminar on Securities Litigation and Regulation, Assistant Deputy Attorney General Lisa Miller noted the Department of Justice’s intention to review the ‘all of a company’s previous misconduct in making indictment decisions. This point was echoed in the remarks made at the ACI FCPA conference by the FCPA Unit Leader of the DOJ Fraud Section, David Last. Both also presented the discretionary power of prosecution as a major obstacle to the activities of the Department of Justice.

A more receptive British Serious Fraud Office

The head of the UK’s Serious Fraud Office (SFO), on the other hand, expressed a more nuanced approach to corporate law enforcement. Also speaking at the ACI FCPA conference, SFO Director Lisa Osofsky highlighted several recent SFO lawsuits against companies and noted that the SFO is “an agency designed to work with the world. of the company ”. Businesses will not be prevented from fully benefiting from a deferred prosecution agreement, she explained, even if they have not reported themselves to the SFO or have no history of misconduct.

The discretionary power in matters of prosecution to reassure?

Prosecutorial discretion is not new to the United States criminal justice system and is in fact a cornerstone of the United States criminal justice system. But its record as a bulwark against excessive prosecution is mixed at best. In the face of cascading announcements by senior Justice Department officials of a renewed commitment to tenacity, the promise to exercise “discretion” offers cold comfort. It is therefore more important than ever for companies to design, implement and regularly test and improve compliance programs and controls that will quickly identify and address faults. In addition, companies must calibrate their engagement with the DOJ so as to highlight these programs and controls and thus maximize the degree of favorable discretion granted to them.

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