The document, notably, states that the Division’s policies must strike an appropriate balance between the need to effectively prosecute corporate criminal wrongdoing while minimizing unnecessary burdens on American enterprise. In this context it is recommended that law enforcement be guided by the principles of (1) most important areas of focus, (2) fairness, and (3) efficiency.

1. Areas of focus

The document highlights that the Division should concentrate its effort on the most acute threats and identifies ten key areas of unlawful activities, the prevention of which will “have the greatest impact in protecting American citizens and companies”, including:

• Fraud, waste and abuse, including fraud in healthcare, federal programmes and fraud in public procurement;
• Complex money laundering, including Chinese organizations, and other organizations involved in laundering funds used in the manufacturing and selling of illegal drugs;
• Bribery and related money laundering;
• Crimes with the use of digital assets and other areas.

The memorandum lists the detection and confiscation of proceeds of the above-mentioned crimes or the assets used in their commission and, in the presence of the grounds, allocation of the confiscated assets to compensating the victims of the crimes among the law enforcement priorities.

As a follow-up to the announced priorities, the head of the Division informs about the revision of the whistleblower rewards pilot programme (we wrote about the previous version of the programme here), in particular, about the expansion of the list of categories of offences for the reporting of which whistleblowers are entitled to a reward.

2. Fairness

The document points out that the Division sticks to the principle of fairness and equal law enforcement both to the natural persons and organisations. At the same time it is underlined that the main accent should be put on holding the natural persons who commit offences liable, because it is them rather than abstract legal persons who commit crimes and should bear responsibility*.

The agency recognises that not all corporate offences require criminal proceedings against companies, and in a number of cases it is more appropriate to use pre-trial settlement mechanisms. However, if the initiation of proceedings is considered, prosecutors should take into account numerous factors: whether the company has self-reported, cooperates with the authorities and has actually undertaken corrective action. The document also clarifies that in case of conclusion of a pre-trial agreement an individual approach should be used based on the analysis of each case rather than on a single pattern.

The memorandum also announces the change of approach towards incentivizing self-reporting of offences by organisations in the Corporate Enforcement and Voluntary Self-Disclosure Policy of the Criminal Division (hereinafter, the Policy). In particular, the document states that the companies that (1) self-report to the Division voluntarily, (2) cooperate with the investigation in a comprehensive manner, (3) eliminate the consequences of offences timely and properly, and (4) do not have aggravating circumstances have a certain declination rather than a presumption of such declination as foreseen previously.

At the same time the revised Policy provides that even if a company discloses information about an offence after the misconduct comes to the knowledge of law enforcement, it is still entitled to leniency, including the conclusion of a non-prosecution agreement (NPA), reduced term of NPA for a period of less than three years (three years is a standard term of pre-trial agreements), a criminal fine reduced by 75 per cent and no external monitoring. However, if a company does not meet the aforementioned requirements, it is not entitled to a fine reduced by over 50 per cent of the sum calculated in accordance with the guidelines manual.

3. Effectiveness

The principle of enhanced effectiveness implies a minimized cost and time of investigations and unjustified reputational damage to companies. The memorandum identifies two main areas for strengthening effectiveness: investigative process and external monitoring.

As regards investigations, it is suggested to put particular accent on the length of corporate investigations that in often cases last for ages, because the schemes employed in the white-collar crimes are often complex and require considerable time for solving them. The head of the division instructs prosecutors to undertake all necessary steps to accelerate investigations and reduce the “side effects” for those accused. It is highlighted that the office of the head of the Division will track progress of such cases and prevent their “freeze”.

The document suggests employing the mechanism for external monitoring only where necessary, in particular, where it is impossible to expect that a company will implement an effective compliance programme or prevent the repetition of unlawful activities without external oversight. In the cases where monitoring is considered appropriate, the powers of the person conducting it should be carefully stipulated to minimize the costs, burden and malfunctions.

In the context of external monitoring, the document also makes reference to the updated Memorandum on Selection of Monitors in Criminal Division Matters. Specifically, it lists the factors that should be taken into consideration in determining whether monitoring is expedient:

• Risk of recidivism of criminal conduct that has an important impact on the interests of the United States;
• Accessibility and effectiveness of other forms of independent public oversight;
• Effectiveness of the compliance programme and compliance culture of the organisation at the moment of the adoption of a decision;
• Maturity of the control system in the organisation and its capacity to independently test and update its compliance programme.

Additionally, the Memorandum on Selection of Monitors defines the steps that the Division should undertake to ensure proper monitoring:

• The cost of the monitoring should be proportionate to the “seriousness” of relevant misconduct and income, size and risk profile of the company;
• The Division should have trilateral meetings with the persons conducting monitoring and the company at least twice a year;
• The Division should cooperate with the monitor and the company throughout the whole period of monitoring to implement an effective, risk-based compliance programme aimed at preventing recidivism.

*In spite of the fact that the US Department of Justice speaks regularly about a particular focus on holding natural persons liable, in practice the initiation of such cases, at least in the context of enforcement of the US Foreign Corrupt Practices Act (FCPA), is actually related to a small number of corporate proceedings, and liability of certain natural persons does not always entail charges against the companies for which they work (for further details see, for example, here).