New DOJ Compliance Enforcement Policies Include Clawback

A post from law firm Faegre Drinker looks at a spate of recently announced DOJ compliance enforcement initiatives. The writers, a team of eight Faegre attorneys, say they amount to “a laser focus on white collar criminal investigations and prosecutions.” The writers look specifically at a series of policy declarations by Deputy Attorney General Lisa Monaco and Assistant Attorney General Kenneth Polite, Jr., announced  at a variety of public forums over the period from September 2022 to early March of this year. Each of them has received attention in law firm posts and in the media, but this post is notably ambitious in that it couches them as part of a strategy with a consistent theme. One announced policy explicitly links a reduction in fines leveled on a company to clawbacks from individuals, so that the financial hit essentially comes out of the pockets of the the executives/employees deemed culpable. In addition, it’s stated explicitly that the clawback will also extend to individuals who had “supervisory authority over the employees or business area engaged in the misconduct, and knew of, or were willfully blind to, the misconduct.”

In a recent presentation at the ABA’s National Institute on White Collar Crime, Assistant AG Polite touched on one area not typically addressed in these public warning sessions: how DOJ will evaluate a corporation’s approach to “the use of personal devices as well as various communications platforms and messaging applications, including those offering ephemeral messaging.” Nothing yet, apparently, from DOJ about Zoom meetings or cell phone calls.