U.S. Deputy Attorney General Rod Rosenstein pledged an enforcement environment in which businesses can thrive. In keynote remarks at the U.S. Chamber Institute for Legal Reform, he emphasized the Department of Justice’s (“DOJ”) commitment to “avoiding unnecessary interference in law-abiding enterprises.” Rosenstein also promoted the benefits of corporate compliance and self-reporting.
Although allegedly offering “no breaking news” about DOJ policies, Rosenstein’s vision provides insight into DOJ’s enforcement and compliance expectations. At a minimum his comments shed light on how DOJ will implement existing policies differently while he is second in charge at DOJ. These changes may dramatically impact resolution of future investigations.
Rosenstein offered apparent slights to the prior administration’s enforcement practices. For instance, he remarked that “[c]orporate enforcement and settlement demands must always have a sound basis in the evidence and the law.” DOJ “should never use the threat of federal enforcement unfairly to extract settlements.” These sentiments seem to respond to concerns expressed by those who object to DOJ’s tactics in the realm of the Foreign Corrupt Practices Act (“FCPA”).
Rosenstein emphasized that new DOJ leadership will reward businesses that self-report and cooperate with federal investigations. Although recognizing barriers to voluntarily disclosing internal wrongdoing, Rosenstein cited the benefits that DOJ can offer. “The Department can move forward not only to punish wrongdoers, but also to identify and implement policies that deter future crimes.” This will prevent those who compete unfairly from gaining any advantage.
A company’s choice to promptly self-report will affect DOJ’s enforcement decisions favorably. Further, DOJ “notices and evaluates carefully whether a corporate compliance program is applied faithfully.” Rosenstein acknowledged that certain compliance measures and cooperation might go beyond a company’s legal obligations. He warned, however, that a company thrives in the long term by working with, not against, the Department.
The newly established Working Group on Corporate Enforcement and Accountability will increase compliance efforts and protect those that “follow the rules.” The Working Group will offer recommendations on promoting individual accountability and corporate cooperation. Additionally, DOJ will evaluate whether the Financial Fraud Enforcement Task Force and the FCPA Pilot Program meet current needs.
Rosenstein also plans to clean up DOJ’s administrative landscape. He highlighted DOJ’s work to “reduce regulations and to control costs,” making it easier for companies to understand their obligations and comply with them. Rosenstein cited outdated and unnecessarily confusing policy guidance as a barrier to effective enforcement. He committed to updating the U.S. Attorneys’ Manual by consolidating and incorporating the outstanding policy memoranda. He also supported President Trump’s January 2017 Executive Order requiring two administrative regulations be identified for repeal for each new one proposed. Rosenstein claimed that making DOJ’s policies cleaner and more accessible will be good for DOJ as well as good for business.
Whether major policy changes are forthcoming remains to be seen, but from this and other recent speeches, it is clear that Rosenstein does not see the future as business as usual.