On Oct. 28, Deputy Attorney General Lisa Monaco issued a memorandum on "initial revisions" to the Department of Justice's corporate criminal enforcement policies. The memorandum is the first in what likely will be a series of changes in approach by the Biden administration to white-collar criminal enforcement, including investigations under the Foreign Corrupt Practices Act (FCPA). Further changes are being evaluated by a new "Corporate Crime Advisory Group" announced in the memorandum.

The memorandum announces changes, with immediate effect for pending and future cases, in three areas:

• Consideration of a company's entire history of past misconduct when making decisions on charging and dispositions of investigations.
• Requirements for corporations under investigation again to provide "all relevant facts relating to the individuals responsible for the misconduct" in order to gain full credit for cooperation.
• Guidance on the DOJ's use of corporate monitors.

Consideration of All Past Misconduct

The current DOJ Justice Manual states that "prosecutors may consider a corporation's history of similar conduct" when making charging and disposition decisions. The new memorandum states that "prosecutors are [now] directed to consider all [prior] misconduct by the corporation" in making these determinations. Prosecutors must take a "holistic approach"—in a speech delivered on the day the memorandum was issued, Monaco explained that FCPA prosecutors need to assess not only past FCPA or fraud cases, but also past criminal tax, environmental, money laundering, or other violations by a company. DOJ prosecutors also should evaluate whether the company has been prosecuted in "another country or state" or has a history of "running afoul of regulators."