Monday, May 14, 2018

Deputy Attorney General Rod Rosenstein announces new DOJ white collar crime policy

By Joanne Cursinella, J.D.

In recent remarks before the New York City Bar White Collar Crime Institute, Deputy Attorney General Rod Rosenstein announced a new policy that encourages coordination among DOJ components and other enforcement agencies when imposing multiple penalties for the same conduct. He also touted the Working Group on Corporate Enforcement and Accountability, established within the Justice Department to promote consistency in the DOJ’s white collar efforts and to promote deterrence.

New policy. The goal of the new policy is to enhance relationships with law enforcement partners in the United States and abroad, while avoiding unfair duplicative penalties, Rosenstein said. It accomplishes this by discouraging “piling on” and instructs DOJ components to coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct. The policy provides no private right of action and is not enforceable in court, Rosenstein said, but it will be incorporated into the U.S. Attorneys’ Manual and will guide the Department’s decisions. It has four key features:
  • First, the policy affirms that the federal government’s criminal enforcement authority should not be used against a company for purposes unrelated to the investigation and prosecution of a possible crime, as a reminder of and commitment to principles of fairness and the rule of law.
  • Second, the policy addresses situations in which DOJ attorneys in different components and offices may be seeking to resolve a corporate case based on the same misconduct, so that they coordinate with one another and achieve an overall equitable result.
  • Third, the policy encourages DOJ attorneys to coordinate with other federal, state, local, and foreign enforcement authorities seeking to resolve a case with a company for the same misconduct.
  • Fourth, the policy sets forth some factors that Department attorneys may evaluate in determining whether multiple penalties serve the interests of justice in a particular case.
Rosenstein warns that penalties that may appear duplicative really are necessary to achieve justice and protect the public. In those cases, he said, “we will not hesitate to pursue complete remedies, and to assist our law enforcement partners in doing the same.”

Other recent policy changes. Rosenstein also mentioned other policy changes. In June 2017, Attorney General Jeff Sessions announced that the DOJ would end the practice of directing third-party settlement payments to non-governmental entities that were not harmed by a defendant’s conduct. Last November, the attorney general announced a DOJ policy to prohibit improper use of and reliance on agency guidance documents. Also in November, the DOJ’s new Foreign Corrupt Practices Act Corporate Enforcement Policy was announced. Rosenstein said that this policy promotes greater clarity and consistency in FCPA enforcement efforts and provides stronger incentives for companies to voluntarily disclose misconduct, fully cooperate, and remediate any harm.

Cross-border enforcement. The DOJ’s commitment to enhancing international coordination and promoting individual accountability is demonstrated by the Department’s increased cross-border enforcement, Rosenstein said. The attorney general assigned additional attorneys and paralegals to the DOJ’s Office of International Affairs to achieve those goals, he added, and the additional resources help us promptly and efficiently obtain necessary evidence from abroad through Mutual Legal Assistance Treaties and other mechanisms of foreign assistance. They also strengthen efforts to return fugitives from abroad for prosecutions here in the United States. Rosenstein promised that we will improve our ability to support our foreign counterparts by more expeditiously responding to their requests for assistance in securing evidence and fugitives located within our borders.

Deterrence. Deterrence requires enforcement, Rosenstein proclaimed. The rules that matter most are the ones that carry expected penalties that decision-makers are unwilling to pay. And while settlements do not necessarily directly deter individual wrongdoers, they may indirectly affect compliance by incentivizing companies to develop and enforce internal compliance programs. But at the level of each individual decision-maker, the deterrent effect of a potential corporate penalty is muted and diffused, Rosenstein said. Our goal in every case should be to make the next violation less likely to occur by punishing individual wrongdoers, he added.

That’s where the new Working Group on Corporate Enforcement and Accountability comes in, according to Rosenstein. It was established to promote consistency in our white collar efforts, Rosenstein said. The group includes leaders and senior officials from the FBI, the Criminal Division, the Civil Division, other litigating divisions involved in significant corporate investigations, and the U.S. Attorney’s Offices. The group will make internal recommendations about white collar crime, corporate compliance, and related issues, Rosenstein added.

While the Department’s rhetoric gets a lot of attention, Rosenstein said, it’s performance that matters most. When we are serious about wanting people to follow the law, it does no good merely to post a sign. We need to make clear our intent to enforce the law, with sufficient vigor that people fear the consequences of violating it, he concluded.