News and developments
Standards of Corporate Compliance Programs Based on Recent Trends of the DOJ
The DOJ is tasked with enforcement of U.S. laws (including those with extraterritorial applicability) and actively publishes press releases on enforcement actions, texts of the speeches given by officials in the DOJ, and publicly retains and revises advisory guidelines for prosecutors who are investigating corporate-level wrongdoings.
Below is a roadmap of standards of good corporate compliance programs as can be gleaned from DOJ’s recent practices and publications.
Authors: Gönenç Gürkaynak, Esq., Ceren Yıldız, Nazlı Gürün and Gamze Yalçın, ELIG Gürkaynak Attorneys-at-Law (First published by Mondaq on February 24, 2023)
[1]https://www.justice.gov/opa/speech/file/1535301/download (Last accessed on January 26, 2023) [2] https://www.justice.gov/opa/speech/file/1535301/download (Last accessed on January 26, 2023)
Further Revisions to Corporate Criminal Enforcement Policies (also known as the “Monaco Memo”) Following Discussions with Corporate Crime Advisory Group
Lisa Monaco, the DOJ’s Deputy Attorney, issued a memorandum on the DOJ’s Corporate Criminal Enforcement Policy (“Memorandum”) on September 15, 2022.[1] The Memorandum provides guidance on how prosecutors should ensure both individual and corporate accountability, and suggests that, going forward, the DOJ will take a more nuanced approach on (i) cooperation credit that can be gained by “voluntary and timely disclosure of all relevant, non-privileged facts” learned through internal investigations, (ii) factors to assess when determining whether to forego a prosecution in the U.S. if it has been already prosecuted in a foreign jurisdiction, (iii) strength of a corporation’s existing compliance program, (iv) appointment of independent monitors, including their selection and the appropriate scope of a monitor's work, (v) transparency in criminal enforcement actions.-
Corporate Cooperation
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Company Policies on Use of Personal Devices and Third Party Applications
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Foreign Prosecutions
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Strength of Compliance Programs
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Transparency in Corporate Criminal Enforcement Actions
Speech of Deputy Attorney General Lisa Monaco of September 15, 2022
On the same day the Memorandum was published, DOJ’s Deputy Attorney General clarified their revised position through a speech.[2] Some of the most important points made, which expanded on the Memorandum, were as follows:- Undue or intentional delay in producing information or documents, particularly those that show individual culpability will result in the reduction or denial of corporation credit.
- If a company has prior history of misconduct, criminal resolutions entered between the DOJ and such company that occurred more than ten years before the conduct currently under investigation, and civil or regulatory resolutions that took place more than five years before the current conduct will be accorded less weight.
- Every component within the DOJ that prosecutes corporate crime must have a program that incentivizes voluntary self-disclosure.
- Companies may employ the “carrots and sticks” approach within their discrete corporate policies, by introducing “clawback provisions”, “escrowing of compensation”, and “other ways to financially hold individuals accountable for criminal misconduct” of the company.
Four recent enforcement actions based on violation of corporate governance rules
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Lafarge SA
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Stericycle Inc.
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Glencore International A.G.
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SAP SE, a global software company
Authors: Gönenç Gürkaynak, Esq., Ceren Yıldız, Nazlı Gürün and Gamze Yalçın, ELIG Gürkaynak Attorneys-at-Law (First published by Mondaq on February 24, 2023)
[1]https://www.justice.gov/opa/speech/file/1535301/download (Last accessed on January 26, 2023) [2] https://www.justice.gov/opa/speech/file/1535301/download (Last accessed on January 26, 2023)