DOJ Revisions to Corporate Criminal Enforcement Policies Are a Potential Sea Change for Internal Investigations

On September 15, 2022, the U.S. Department of Justice announced broad changes to its policies on corporate criminal enforcement that merit serious consideration by in-house and outside counsel who conduct corporate internal investigations.

• The Revised Policies will place increased pressure on companies and could result in substantial shifts in how companies need to investigate potential employee misconduct.
• Failure to disclose misconduct early in an investigation could result in companies facing the possibility of a guilty plea or indictment, rather than a deferred or non-prosecution agreement.
• To receive full cooperation credit, companies will need to assess several new strategic considerations, including the timing of disclosing hot documents and whether to claw back compensation from employees who engaged in misconduct.

In this client alert, Jonathan S Abernethy, Christian R Everdell, and Luke Appling provide a summary of the DOJ’s recent changes to its policies on corporate criminal enforcement, as well as recent statements by Deputy Attorney General Lisa Monaco and Principal Associate Deputy Attorney General Marshall Miller and offer potential implications for corporate internal investigations moving forward.