On May 9, 2018, the U.S. Department of Justice (DOJ) announced a new policy discouraging unnecessary “piling on” of enforcement actions and penalties for corporate wrongdoers. Deputy Attorney General Rod Rosenstein discussed this policy, officially titled “Policy on Coordination of Corporate Resolution Penalties,” in his speech to the New York City Bar White Collar Crime Institute.
This nonbinding policy has been added to the U.S. Attorneys’ Manual at Section 1-12.100. Rosenstein, in his speech announcing the policy, focused on the DOJ’s reputation for fairness, questioning whether repetitive punishment for the same behavior was necessary or effective in deterring such behaviors. The new policy aims to give companies greater certainty and finality in settlements by addressing the “piling on” of fines, penalties and forfeiture imposed across the department and in conjunction with other enforcement agencies domestically and abroad. This policy will reduce repetitive punishment from different government agencies and departments for conduct that should be punished just once.
The policy is comprised of four features:
- The policy reaffirms that the federal government should not use its criminal enforcement authority for any purposes unrelated to the investigation and prosecution of a crime. This includes the threat of criminal prosecution in order to obtain a larger civil settlement. Rosenstein stated, “This is not a policy change. It is a reminder of and commitment to principles of fairness and the rule of law.”
- The policy directs DOJ prosecutors and trial attorneys to coordinate whenever different DOJ components and offices may be seeking to resolve a case based on the same misconduct. This coordination can include the crediting and apportionment of penalties, fines, forfeitures or any other means of avoiding disproportionate or duplicative punishment of a corporation.
- Not only does the policy direct coordination within the DOJ, it also encourages DOJ prosecutors and attorneys to coordinate with other federal, state, local and foreign authorities that may be seeking to resolve a case based on the same misconduct.
- Despite the general policy against piling on, the policy also sets forth evaluating factors to determine whether the imposition of multiple penalties would nevertheless serve the interests of justice.
With respect to the fourth prong, which permits repetitive penalties in certain circumstances, Rosenstein stated that, when necessary to protect the public and achieve justice, “we will not hesitate to pursue complete remedies, and to assist our law enforcement partners in doing the same.” The DOJ will consider factors including the egregiousness of a company’s misconduct; statutory mandates regarding penalties, fines or forfeitures; the risk of unwarranted delay in achieving a final resolution; and the adequacy and timeliness of a company’s disclosures and its cooperation with the DOJ.
The DOJ’s efforts to avoid “piling on” enforcement actions is not entirely new. The coordination of investigations across different offices and components of the DOJ has been used in the past to achieve an equitable result and avoid disproportionate punishment. Cooperation is particularly common in cross-border enforcement. In the past four years, the DOJ Antitrust Division has cooperated with 21 different international agencies in 58 different merger investigations.
Rosenstein pointed to the DOJ Criminal Division’s Fraud Section’s recent action against Keppel Offshore & Marine Ltd. as an example of how the new policy will be applied. Keppel, a Singapore-based company, paid a $422 million settlement as a criminal penalty for bribery allegations. The penalty was divided among the United States, Singapore and Brazil. With this new policy in place, we are likely to see this practice expand from the Fraud Section’s FCPA Unit and the DOJ Antitrust Division to prosecutions and enforcement actions brought by other DOJ components and U.S. Attorney’s Offices.
While this new policy may provide greater certainty and fairness to U.S. and multinational corporations facing multiple parallel criminal and/or regulatory investigations, its application in practice bears monitoring. Much will depend upon whether other U.S. and foreign regulators follow suit.