December 2022 Business Litigation Update

In September 2022, the Department of Justice (DOJ) released a memo, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” announcing new changes to the DOJ’s corporate criminal enforcement policies. These revisions are considered some of the most sweeping changes ever implemented by the agency and effect every U.S. company. Corporate criminal enforcement – such as, anti-bribery, money laundering, theft from employee benefit plans, and even environmental violations – continue to be one of the DOJ’s top priorities.

Fortunately, the new policies provide guidance on how to avoid a DOJ enforcement action. So, what should companies do today to avoid DOJ scrutiny?

1. Look to your past. When investigating, the DOJ is going to look for any past misconduct by your company. Has there been any wrongdoing that has yet to be addressed or reported? If so, what can your company do to promptly remedy this in the most efficient way possible so that it is no longer an issue?
2. Make a plan. What is your company’s plan if an employee or third party reports a criminal violation? Does your company have processes and procedures in place to address this? If not, such a plan needs to be developed and put in place immediately. Remember, the DOJ prioritizes voluntary reporting (of violations) from companies. Have a plan in place so that if something were to occur, your company already has a roadmap on what to do and can take action quickly.
3. Scrutinize your corporate compliance program. Having a comprehensive corporate compliance program in place is critical. While it does not eliminate risk entirely, should misconduct occur, the DOJ is going to look to see what kind of program was in place and how effective it was.
   The DOJ’s continued focus on corporate crime means that it is more important than ever to make sure your company is putting all the necessary elements in place to prevent issues arising, as well as establishing plans to act quickly if wrongdoing is uncovered.

The DOJ is going to look at your company’s past actions and its current actions when conducting an investigation. So, take a look back, plan today, and prepare for tomorrow.