On Sept. 15, 2022, Deputy Attorney General Lisa Monaco released Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group ("Monaco Memo 2" or "Memo"), expanding on her Oct. 28, 2021 memorandum, Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies ("Monaco Memo"). Although the Memo — as is true of all DAG memos governing an Administration's corporate prosecutions policy — is ostensibly intended as guidance to the attorneys at DOJ and the various United States Attorney's Offices around the country, it is helpful as a guide to the defense community in advising corporate clients. This most recent version, among other things: 1) focuses on what, how, and when evidence regarding an employee's misdeeds must be provided to DOJ in order for a company to get cooperation credit; 2) directs each DOJ unit or division that has not already done so to draft its own voluntary disclosure policy "such that the benefits … are clear and predictable"; and 3) provides guidance on how to treat corporate compliance programs, including compensation structures, as an element of compliance for purposes of determining the appropriate resolution of the case, including whether a monitor should be installed. The Memo also clarifies previous pronouncements made in the Monaco Memo regarding a company's prior misconduct — what is included and what isn't when deciding a resolution. Finally, in the interests of transparency and consistency, the DAG directs the Criminal Division, as well as other units, to develop guidances regarding compensation metrics in compliance programs and the public monitor selection process, respectively, by year-end.

Prosecution of Individuals

Harking back to the Yates Memo, the DAG memo governing DOJ's corporate prosecutions policy under the Obama Administration, the Memo reaffirms that individual accountability is one of the Department's first priorities; companies must disclose wrongdoing by individuals to receive any kind of cooperation credit. The Memo adds that this disclosure must be timely, defined as "swiftly and without delay." The Memo discusses factors for a prosecutor to consider, such as the expiration of the statute of limitations and the risk of destruction of evidence.

The Memo further makes a point that DOJ wants to receive communications among the relevant employees first when a cooperating company is in the process of providing documents. Historically, corporate defense counsel seeking to cooperate would provide organization charts and other corporate documents first because: 1) they tend to be the first requests on a grand jury subpoena; 2) if the company is a multinational and some of the conduct took place overseas, obtaining communications involving overseas employees is not a quick and easy process; and 3) unlike communications, business records do not require a significant review to cull nonresponsive and privileged information. Nevertheless, the Memo makes clear that those emails and texts that generally should get the most careful review are precisely the documents the government wants first.