Category Archives: Prosecutorial Diversion: DPAs and NPAs

Meeting (and Not Breaching) DOJ And SEC Corporate Settlement Agreements

by Jonny Frank, Laura Greenman, Chris Hoyle, Michele Edwards, and Ksenia Ioffe

From left to right: Jonny Frank, Laura Greenman, Chris Hoyle, Michele Edwards, and Ksenia Ioffe. (Photos provided by the authors).

No Longer Just a Matter of Paying the Fine and Moving On

Corporate settlement agreements used to be straightforward—pay the penalty and move on.

Now, these resolutions rival complex business transactions, including months of negotiations and multi-year post-resolution obligations. Satisfying post-settlement commitments is a business imperative, not just a legal obligation. Meeting, if not exceeding obligations, helps restore brand value and improves employee and investor stakeholder confidence.

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DOJ, BIS and OFAC Release Guidance on Voluntary Self-Disclosures

By Eric J. Kadel, Sharon Cohen Levin, Anthony J. Lewis, Shari D. Leventhal, and Edoardo Saravalle

Left to right: Eric J. Kadel, Sharon Cohen Levin, Anthony J. Lewis, Shari D. Leventhal, and Edoardo Saravalle (Photos courtesy of Sullivan & Cromwell LLP)

DOJ, BIS and OFAC Issue Joint Guidance on Policies Relating to Voluntary Self-Disclosures of Potential Violations of Sanctions, Export Controls and Other National Security Laws

Summary

On July 26, 2023, the Department of Justice, the Department of Commerce and the Department of the Treasury released a Tri-Seal Compliance Note describing voluntary self-disclosure and whistleblower policies applicable to U.S. sanctions, export controls and other national security laws. The release does not impose new obligations, but provides an overview that (i) clarifies the salient aspects of the agencies’ voluntary self-disclosure policies (particularly following recent updates to these policies), (ii) suggests the differences between each agency’s approach to voluntary self-disclosures (including with respect to the mitigation of civil or criminal liability) and (iii) underscores the agencies’ goal of shifting the private sector’s risk calculus toward greater voluntary self-disclosures.

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French Authorities Publish Guide on Anti-Corruption Internal Investigations

by Bruce E. Yannett, Erich O. Grosz, Alexandre Bisch, and Fanny Gauthier

From left to right: Bruce E. Yannett, Erich O. Grosz, Alexandre Bisch, and Fanny Gauthier (photos courtesy of Debevoise & Plimpton LLP)

On March 14, 2023, France’s main anti-corruption authorities, the French Financial National Prosecutor (the “PNF”) and the French Anti-Corruption Agency (the “AFA”), published a 38-page document providing best practices for companies conducting anti-corruption internal investigations in France (the “Guide”).[1]

Although it has no normative value, the Guide is generally helpful for companies that have to conduct internal investigations as part of their mandatory French-style compliance programs and those who conduct internal investigations in anticipation of a potential French-style deferred prosecution agreement (the “CJIP”).

We describe below what we consider to be the main aspects of the Guide. When relevant, we have also added some comparisons and comments from a U.S. perspective.

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U.S. Attorney’s Offices Issue Nationwide Corporate Voluntary Self-Disclosure Policy

by Joon H. Kim, Lev L. Dassin, Jonathan S. Kolodner, Lisa Vicens, Andrés Felipe Sáenz, and Roberta Mayerle

From left to right: Joon H. Kim, Lev L. Dassin, Jonathan S. Kolodner, Lisa Vicens, Andrés Felipe Sáenz, and Roberta Mayerle (Photos courtesy of Cleary Gottlieb Steen & Hamilton)

On February 22, 2023, the Department of Justice announced a new corporate Voluntary Self-Disclosure Policy for U.S. Attorney’s Offices nationwide (the “USAO Policy”).[1] The USAO Policy sets forth clearer and concrete benefits for companies that voluntarily and timely self-report misconduct as had been directed by the September 15, 2022 memorandum from the Deputy Attorney General for the Department of Justice (“DOJ”) (the “Monaco Memorandum”).[2] The USAO Policy also follows the significant revisions to the DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy recently announced on January 17, 2023 (the “Corporate Enforcement Policy”).[3]

The USAO Policy applies to all U.S. Attorney’s Offices and is effective immediately. As such, it standardizes what was previously a patchwork of different practices across U.S. Attorney’s Offices and fills a gap where no comprehensive voluntary self-disclosure policy previously existed.

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The 2022 DOJ Enforcement Guidance: Areas for Compliance Program Focus

Editor’s Note: On September 15, 2022, the Program on Corporate Compliance and Enforcement (PCCE) at New York University School of Law hosted Deputy Attorney General Lisa O. Monaco while she delivered a speech detailing significant changes to the Department of Justice’s corporate prosecution policies. The speech and accompanying policy memo are available here. Over the coming days and weeks, PCCE will be publishing reactions to the new DOJ policies by practitioners, scholars, and compliance officers.

by Kathryn S. Reimann

The changes to the Department of Justice’s (DOJ’s) corporate criminal enforcement policy announced by Deputy Attorney General Lisa Monaco at NYU School of Law on September 15 have prompted in-house and external counsel to reassess approaches to internal investigations, prosecutorial discovery requests, and negotiations with prosecutors in pending cases. However, the speech, and especially the concurrently-released DOJ memorandum, also offer significant implications for enterprise-wide compliance and risk management programs. This note highlights program elements that compliance officers and those who oversee compliance programs should be thinking about in five important areas: issues escalation and management; policy enforcement and related discipline; the role of compliance performance in employee compensation; supervision of employee communications; and as an overarching theme, continuously managing a firm’s changing risk management profile.

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DOJ Clarifies and Refines Its Policies for Corporate Criminal Enforcement

by John F. Savarese, Ralph M. Levene, David B. Anders, and Daniel H. Rosenblum

In an important policy speech late last week, Deputy Attorney General Lisa Monaco acknowledged “the data showing [an] overall decline in corporate criminal prosecutions over the last decade.” The interesting question prompted by that data, of course, is the one no one seems to know the answer to: Is this decline in corporate prosecutions the result of efforts by well-managed companies to respond to the oft-repeated admonition to set the right tone at the top and invest extensively in compliance programs, training and personnel such that the number of corporate prosecutions actually should be coming down? Or is it because there is some lack of adequate prosecutorial effort or some other obstacle standing in the way of achieving the right level of corporate prosecutions? In the absence of any hard empirical data on that crucial question, DAG Monaco opted for the latter explanation, thus repeating the common DOJ mantra that it “need[s] to do more and move faster.”

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Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement

New York University School of Law was pleased to host Deputy Attorney General Lisa O. Monaco as she delivered remarks on behalf of the Department of Justice regarding corporate criminal enforcement policy on Thursday evening, September 15. DAG Monaco’s remarks are reproduced below in full, and were followed by DOJ’s release of a memo entitled, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group.”

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CFTC Releases Request for Information on Climate-Related Financial Risk

by David Gilberg, Colin Lloyd, Rebecca Simmons, Aaron Levine, and David Schulman

SUMMARY

On June 2, the Commodity Futures Trading Commission (“CFTC”) voted unanimously to release a Request for Information (“RFI”) to solicit comments to better inform its understanding of climate-related financial risks to commodities and derivatives markets. The RFI states that the CFTC intends to use this information to inform potential future actions, which could include new or amended guidance, new regulations or other CFTC action pursuant to its existing statutory authority. The RFI notes that such actions could apply to any CFTC-registered entities, registrants or other derivatives and commodities market participants. The RFI follows action by a number of other U.S. and international regulatory bodies concerning the mitigation of climate-related financial risk. The CFTC seeks comment on all aspects of its existing regulatory framework and market oversight function as they may be affected by climate risk, and such comments are due on August 8, 2022.

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Fifth Circuit holds the SEC’s administrative adjudications to be unconstitutional

by Gre g D. An dres, Uzo Asonye, Martine M. Beamon, Robert A. Cohen, Daniel S. Kahn, Tatiana R. Martins, Paul S. Mishkin, Fiona R. Moran, Paul J. Nath anson, and David B. Toscano

On May 18, the U.S. Court of Appeals for the Fifth Circuit ruled that the SEC’s administrative proceedings are unconstitutional on three independent grounds. The decision could potentially have a significant impact on the constitutionality of administrative adjudications by other federal agencies as well.

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Connecticut Passes Comprehensive New Privacy Law

by Lori E.Lesser, Nicholas S. Goldin, Jessica N. Cohen, Melanie D. Jolson, Corina McIntyre, Alysha J. Sekhon, Bobbie Burrows, and Kate E. Mirino

On May 10, 2022, Connecticut’s Senate Bill 6 titled “An Act Concerning Personal Data Privacy and Online Monitoring” (CTDPA) was signed by Governor Ned Lamont, making Connecticut the fifth state to enact its own comprehensive consumer privacy law, after California, Colorado, Utah and Virginia.[1]

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