by Valarie Hays and Michael Kim Krouse 

The Assistant Attorney General (AAG) for the Criminal Division, Kenneth Polite, Jr.—who previously held positions as a US Attorney, law firm partner, and in-house counsel—was interviewed Wednesday, December 1, at the American Conference Institute’s Foreign Corrupt Practices Act (FCPA) conference.

Here are some key takeaways from the wide-ranging discussion:

• Priorities: The DOJ Criminal Division’s priorities for 2022 include (1) combatting violent crime, (2) protecting the most vulnerable victims in our communities, and (3) enhancing corporate enforcement.

• Increased Resources: The Criminal Division is increasing resources by (1) adding more attorneys to strike forces based in various regions across the country, (2) expanding the work of corporate compliance specialists, (3) using data analytics to identify new investigation sources, and (4) forming a National Cryptocurrency Enforcement Team. As to the latter, AAG Polite explained that the team will be made up of prosecutors from the money laundering and computer crimes groups, as well as prosecutors from the US Attorneys’ Offices, and will focus on building cases in this emerging space.  

• Resolution of Criminal Cases: In assessing the appropriate resolution in criminal cases, DOJ will consider what companies did immediately upon learning about the misconduct. For example, DOJ will want to know if the company took prompt and effective remedial action. DOJ also will look at the recency and pervasiveness of the conduct, the participation of company leadership in the misconduct, and prior acts of misconduct committed by the company. There is no one-size-fits all approach to corporate resolutions, according to AAG Polite.

• Monitorships: Corporate compliance monitorships are not intended to be punitive. DOJ will weigh the financial costs against the need for and benefits of a monitor. DOJ also will look at the state of the compliance program at the time of the misconduct and the time of resolution, but the latter will weigh more heavily in the monitorship evaluation, including whether the program is adequately resourced and if there has been sufficient time to test any recent improvements to the program.

• Compliance: Companies can encourage compliance of middle management by making sure that these employees have a voice within the company. Companies should be able to explain their compliance programs in plain language, without relying on jargon.

In general, AAG Polite echoed many of the same themes from the earlier-in-the-day remarks of David Last, head of DOJ’s FCPA Unit, and Lisa Osofsky, head of the UK Serious Fraud Office, thus reinforcing how anti-corruption enforcement is increasingly coordinated within the US government and with international partners.

Valarie Hays and Michael Kim Krouse are partners at Arnold & Porter. This post was originally published on Arnold & Porter’s Enforcement Edge blog.

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