On April 27, 2022, Deputy Attorney General Lisa O. Monaco (“DAG Monaco”) highlighted the latest Department of Justice (the “DOJ”) enforcement priorities during a keynote address at the New York City Bar Association’s 10th Annual White Collar Crime Institute. While her remarks largely echoed some of the policy changes the DOJ had previously announced in October 2021, DAG Monaco emphasized, among other topics, the increasing role that national security interests are playing in criminal investigations and prosecutions.
Here are five key takeaways from DAG Monaco’s speech.
1.Sanctions are the new FCPA
DAG Monaco stressed the DOJ’s commitment to enforcing the sweeping sanctions and export restrictions that the United States has imposed in the wake of the Russian invasion of Ukraine. Sanctions enforcement remains a top national security priority, and the DOJ is closely scrutinizing the conduct of multi-national corporations to ensure that they are not engaging in activity to evade these restrictions. DAG Monaco cautioned that companies have an obligation to understand the impact of sanctions on their businesses, including know-your-customer and supply chain considerations. DAG Monaco compared these types of measures to the measures corporations have traditionally taken in the FCPA context where corporations have long been tasked with instituting policies and procedures to curb the bribery of foreign officials.
2.Cybercrime is a National Security Threat
Cybercrime also remains a top national security concern. While the zealous prosecution of cybercrime has always been important, DAG Monaco stated that the DOJ of late has placed an equally important emphasis on cybercrime prevention. Cybercrime prevention requires a multi-agency approach, and the DOJ has been coordinating more closely with all members of the intelligence community. DAG Monaco noted the vital role that corporations can play in preventing cybercrimes, urging companies to come forward quickly when they are the victim of a cyberattack so that the DOJ can quickly dispatch resources to investigate and prevent a similar cyberattack from happening elsewhere.
3.Significant Resources have been Deployed to Investigate and Prosecute Covid Fraud
Two years into the pandemic, the DOJ continues to devote significant resources toward investigating and prosecuting of COVID-19 related fraud. DAG Monaco stated that the COVID-19 Fraud Enforcement Task Force, established by the Attorney General in May 2021, has worked closely with key interagency partners, including the Department of Treasury, the IRS, and the U.S. Postal Inspection Service, to investigate sophisticated transnational fraud schemes. To date, the DOJ has charged thousands of defendants with criminal offenses connected to the pandemic. Although many of these prosecutions have been fairly straightforward cases of outright fraud, DAG Monaco expects more significant prosecutions to continue in this space.
4.What’s Old is New – Individual Accountability is a Top Administration Priority
Echoing statements she made last October, DAG Monaco reiterated the DOJ’s priority, under the Biden Administration, to hold individuals—in addition to corporations—accountable for white collar criminal conduct. The prosecution of individuals not only deters recidivism but promotes a culture of compliance within corporations. DAG Monaco encouraged corporations to keep compliance top-of-mind—particularly at the board level—and devote significant resources toward detecting and ferreting out individual corporate malfeasance.
5.Evaluating Corporate Recidivism
Relatedly, DAG Monaco indicated that the DOJ is taking a renewed interest in evaluating what it means to be a corporate recidivist. As DAG Monaco previously noted last October, the DOJ’s assessment of repeat corporate wrongdoing was often too tethered to the specific misconduct in question—i.e. whether there was a repeat violation of the same underlying offense. Under this administration, the DOJ’s approach to determining whether a corporation should be treated as a recidivist is broader in scope; front line prosecutors are tasked with evaluating the entirety of a corporation’s prior criminal history to determine the proper form of resolution and whether enhanced penalties are warranted based on repeat misconduct.
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