On April 17, 2015, Leslie Caldwell, assistant attorney general for the Criminal Division of the U.S. Department of Justice, spoke at New York University Law School’s Program on Corporate Compliance and Enforcement. Given the setting—the Conference on Corporate Crime and Financial Misdealing—Caldwell highlighted prosecutions brought by the DOJ’s Fraud and Asset Forfeiture and Money Laundering Sections and explained the DOJ’s considerations for “pressure test[ing]” corporate investigations.

Caldwell’s first focus was increased transparency, which she described as a “two-way street” benefiting both the Criminal Division—in the form of more cooperation—and companies themselves, since they can “better evaluate the consequences they might face” without cooperation credit. Caldwell hopes increasingly detailed charging decisions will more effectively deter corporate wrongdoing and improve corporate culture.

As for the DOJ’s expectations for cooperating companies, companies should:

  • “Conduct a thorough internal investigation”;
  • Timely “turn over evidence of wrongdoing to [] prosecutors”; and
  • Most importantly, “identify culpable individuals …. and provide the facts about their wrongdoing.”

Caldwell’s remarks underscored the DOJ’s oft-repeated focus on individuals and emphasized that a tepid corporate mea culpa won’t satisfy the DOJ. A strong internal investigation isn’t just “tailored” to the company and its circumstances, “independent,” “thorough,” and fact-oriented; the primary “hallmark[] of [a] good internal investigation” is the “identification of wrongdoers.” Although the DOJ doesn’t require companies to “boil the ocean” to investigate corporate wrongdoing, a company’s own investigation “can significantly affect the length of the [DOJ] investigation and the costs incurred.”

Caldwell cautioned the audience with examples: BNP Paribas’s and French power and transportation company Alstom’s failures to cooperate in recent investigations—both resulting in guilty pleas and hefty financial penalties ($9 billion for BNP, and $772 million for Alstom).

In closing, Caldwell pointed attendees to the DOJ’s corporate prosecution principles—the nine “Filip memo” factors now encapsulated in the United States Attorneys Manual at Section 9-28.300. While recognizing the tension between increased transparency and companies’ resistance to publicity about investigations, going forward, Caldwell plans to “include even more detailed explanations” of the DOJ’s charging considerations in publicly available pleas, NPAs, and DPAs.