On January 17, 2023, the US Department of Justice (“DOJ” or the “Department”) issued a revised version of its Criminal Division Corporate Enforcement Policy (“CEP”). The CEP sets out the Criminal Division’s approach to resolving cases with corporations. In particular, it addresses how the Criminal Division will credit companies which voluntarily disclose criminal conduct and cooperate during the investigation and resolution of the matter. Our analysis of the latest changes to the CEP can be found here.
The CEP started its life in 2016 as a Pilot Program applied in the limited context of resolving Foreign Corrupt Practices Act (“FCPA”) cases. Although since then it has been expanded beyond the FCPA context to cover all corporate criminal matters handled by the Criminal Division, the CEP does not directly apply to cases handled by other components of the Department.
Indeed, the majority of criminal sanctions and export control cases brought by the Department are brought by its National Security Division (“NSD”) rather than by the Criminal Division. By their nature however, these cases are often brought by cross-Department teams from various Divisions together with local US Attorney’s offices. For that reason, although the revised CEP will not be directly applicable to sanctions and export control cases brought by the NSD, many of the Department prosecutors handling these cases will be familiar with the CEP, and may apply similar principles and concepts when dealing with corporate defendants.
The revisions to the Criminal Division’s CEP have been precipitated, at least in part, by a memorandum issued to the Department by Deputy Attorney General Lisa Monaco in September 2022, entitled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group” (the “Memo”). Our analysis of that Memo can be found here. Among other things, the Memo instructed all Department components that handle criminal cases to develop and publish policies on voluntary self-disclosure, or to review their existing policies for compliance with the requirements of the Memo.
For its part, the NSD does already have its own Export Control and Sanctions Enforcement Policy for Business Organizations (“NSD Policy”). The NSD Policy addresses the requirements for companies seeking to receive credit for voluntary self-disclosures of willful export control or sanctions violations and sets forth the potential benefit to companies who meet the NSD requirements defined in the Policy. The NSD Policy was last updated in 2019 (and was covered by this blog here), together with a comparison between the NSD Policy and what was then known as the “FCPA Corporate Enforcement Policy,” the predecessor to the Criminal Division’s CEP. Whether or not the NSD follows the Criminal Division’s lead in revising its own Policy in light of the review mandated by the Monaco Memo remains to be seen. Until any revision to the NSD Policy is forthcoming and while not directly applicable to sanctions or export control cases, the CEP does provide insight into Department-wide thinking and current best practice in this area.