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United States: Latest Monaco Memo addresses key areas of the Department of Justice policy on Corporate Criminal Enforcement

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In brief

On 15 September 2022, Deputy Attorney General Lisa Monaco issued a memorandum to Department of Justice (“Department” or “DOJ“) prosecutors entitled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group” (“Second Monaco Memo” or “Memo“).1 As has become common in recent years (with a brief intermission under Deputy Attorney General Rod Rosenstein who objected to the practice), such memoranda and other Department pronouncements have come to herald key developments in DOJ policy on corporate criminal enforcement and related practice. These memoranda are therefore closely watched by the defense bar and corporate counsel alike. Indeed, this is the second such memorandum issued by Monaco in the past year. Monaco’s first memorandum issued in October 2021 (“First Monaco Memo“)2, announced, among other initiatives, the establishment of a Corporate Crime Advisory Group, to review the Department’s approach to corporate criminal enforcement.

Key takeaways from the Second Monaco Memo

The Second Monaco Memo presents the findings of that advisory group and the changes to DOJ policy regarding corporate criminal responsibility and individual accountability that are to be introduced as a result.

While the Second Monaco Memo covers a lot of ground, many of the topics addressed either reiterate, reinforce or supplement existing DOJ policy and practice. There are however a number of areas where the Second Monaco Memo introduces important new policies or initiatives which are worthy of particular attention. We consider the most significant of these to be:

  • An increased emphasis on timely document production by cooperating companies, to enable prosecutors to promptly initiate related proceedings against implicated individual defendants. What qualifies as “timely” in this context is likely to be an issue of significant discussion and potential disagreement between Department prosecutors and cooperating companies.
  • A commitment to the continued use of independent compliance monitors in connection with the resolution of corporate criminal cases, together with initiatives designed to increase transparency in the appointment, terms of reference and oversight of those monitors.
  • Directing companies to implement executive compensation models which reward good compliance governance and, potentially more radically, require companies to clawback compensation from executives found to have participated in, or contributed to, corporate criminal offenses. The implementation, and particularly the execution, of such clawback models, is likely to be challenging.

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1 Further Revisions to Corporate Criminal Enforcement Policies, September 15, 2022.

2 Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies.

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Geoff Martin is a partner in the Litigation and Government Enforcement practice group in Washington, DC. Geoff started his career in Baker McKenzie's London office in 2007 and moved to Washington DC in 2012. Geoff represents clients in matters before the federal government arising out of anti-corruption, trade sanctions, fraud, anti-money laundering, national security, and related enforcement actions. He also represents clients in civil and criminal matters in federal court. Geoff has extensive experience conducting internal investigations relating to such matters around the world.

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Maria Piontkovska is an associate in Baker McKenzie's Los Angeles office. Maria advises clients on reducing anti-corruption compliance risks stemming from operating business in emerging markets and handles internal investigations and related interactions with law enforcement authorities.

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Maurice A. Bellan is the Managing Partner of the Washington, DC office and a member of the Global Dispute Resolution and North America Litigation and Government Enforcement Steering Committees. He is a former trial attorney at the US Department of Justice and is experienced in a broad range of fraud and anti-corruption matters. Maurice was recently named by Savoy magazine as one of the most influential African-American lawyers in the United States.

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Reagan Demas has significant experience working on behalf of companies and investors in emerging markets and high risk jurisdictions. He has managed major legal compliance investigations for a variety of Fortune 500 companies and negotiated settlements before the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities, obtaining declinations in a number of matters. He has also conducted risk assessments and due diligence in a variety of legal compliance matters for companies across industries and has worked on the ground evaluating partnerships, investments and other business opportunities worldwide. Reagan has written and spoken extensively on emerging compliance trends, ESG legal risk and best practices, bribery/corruption and doing business in Africa. In 2019, Reagan was selected as a BTI Client Service All Star by corporate counsel in recognition of being a leader in superior client service. He is the founder and chief editor of Baker McKenzie's Global Supply Chain Compliance Blog and serves on the steering committee of the North American Litigation and Government Enforcement Practice Group.

Reagan serves as a member of the Global Steering Committee of the Firm's Industrials, Manufacturing and Transportation (IMT) Industry Group.

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William (Widge) Devaney is the Chair of Baker's North American Litigation and Government Enforcement Group. A former federal prosecutor, Widge represents corporations and individuals in internal and government facing investigations and enforcement actions, often cross-border. An experienced trial lawyer, he also routinely represents clients in complex civil litigation and provides compliance advisory advice, particularly in the anti-corruption sphere. Widge is ranked in Chambers for both White Collar Crime and the FCPA, as well as New York Super Lawyers. He is the author of multiple publications involving such topics as the FCPA, cross-border investigations and corporate compliance programs. He appears often in the print media commenting on current criminal matters.

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Terry Gilroy is a partner in the New York office of Baker McKenzie and a member of the Compliance and Investigations Practice Group. Prior to joining the Firm in 2018, Terry served as Americas Head of the Financial Crime Legal function at Barclays. Terry advises businesses and individuals on white collar and financial crime issues and has significant experience conducting investigations relating to compliance with the US Foreign Corrupt Practices Act (FCPA) and related bribery and corruption statutes, economic sanctions regulations as administered by the US Department of the Treasury's Office of Foreign Assets Control (OFAC), and the Bank Secrecy Act and related anti-money laundering (AML) regulations and statutes. Terry spent six years on active duty in the United States Army as a Field Artillery officer.

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Jess is a technology investigations partner practicing at the forefront of government enforcement in the technology industry. Jess leads Baker McKenzie's investigations and compliance practice on the West Coast.
For more than two decades, Jess has defended companies and individuals in government investigations and conducted internal investigations involving cutting-edge technology issues including AI, cybersecurity, and alleged misuse of all kinds of data. Jess has defended companies and individuals across the Asia Pacific region since the first DOJ Antitrust cartel investigations in 2003, and has a deep understanding of cultural issues impacting investigations in that region and across the globe.
Jess has been recognized by Chambers & Partners, The Legal 500, and Global Investigations Review for internal investigations and defense in cases involving White Collar Crime & Government Investigations.

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Jerome Tomas is Chair of the Firm's SEC and Financial Institutions Enforcement Group and co-chair of the North America Government Enforcement practice group. He has been recognized by Chambers for White Collar Crime & Government Investigations. He represents multinational companies faced with government investigations and conducts internal investigations to assess and remediate legal and compliance concerns in domestic and global operations. With his experience as a former member of the SEC Division of Enforcementā€™s Cyberforce, the agencyā€™s internet and cyber fraud unit, Jerome regularly advises companies involved in data security breaches and incident response. Jerome now leads teams of lawyers to address government law enforcement perspectives and where necessary, meet and refute government legal theories of corporate and individual liability head-on, while also being pragmatic and business-oriented for management and boards to compete internationally.

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Peter Tomczak serves as Baker McKenzie's Co-Chair, Global Investigations, Compliance and Ethics. He is a member of the Steering Committee of the Firm's Global Dispute Resolution practice, and also serves on the Firm's Global Professional Responsibility and Practice Committee and Cross-Alliance Pricing Committee. Peter previously served as Chair of the Firm's North America Litigation and Government Enforcement Practice Group, and on the Steering Committee of the Firm's Global Industrials, Manufacturing and Transportation Industry Practice Group. Peter joined Baker McKenzie in 2003 after having served as a law clerk for the Delaware Court of Chancery.

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Brian Whisler is the immediate past Chair of the DC Litigation and Government Enforcement Practice Group and a member of the Compliance and Investigations, Dispute Resolution and Global Health Care and Life Sciences Practice Groups. Prior to joining Baker McKenzie, Brian served for fifteen years as a federal prosecutor with the US Department of Justice. During that time, he was the Criminal Chief Assistant US Attorney in the Eastern District of Virginia, Richmond, overseeing and prosecuting cases ranging from white collar crime, violent crime, public corruption, and terrorism. His trial practice focused predominantly on white collar cases, including health care fraud, securities fraud, public corruption, money laundering and tax fraud. He previously served as an Assistant US Attorney for the Western District of North Carolina for ten years, where he focused on white collar prosecutions and received the Attorney Generalā€™s Award for his prosecutions in a money laundering investigation resulting in convictions of more than 25 defendants after three jury trials and multiple guilty pleas. He also served as Chief of Appeals and Health Care Fraud Coordinator for the same jurisdiction. Brian has also served as adjunct professor at the University of Richmond, TC Williams School of Law and an instructor at the National Advocacy Center for the US Justice Department in Columbia, South Carolina.

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Nancy Rosenfeld is of counsel in the Firmā€™s Washington, DC office. She advises clients on corporate compliance issues, including the application of the US Foreign Corrupt Practices Act (FCPA) and related legislation to multinational companies operating in emerging markets.

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