Early in the Biden administration, the Department of Justice sent a clear message: white-collar criminal enforcement would be a lot tougher—and a higher priority—than during the Trump administration. Years of undue leniency toward companies and executives would be coming to an end.

An October 2021 speech to the ABA White-Collar Institute by Deputy Attorney General Lisa Monaco signaled the new approach. The speech coincided with issuance of an Oct. 28, 2021, memorandum, "Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies," which was followed about one year later by a Sept. 15, 2022, memorandum, "Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group," (the Monaco Memoranda). The Monaco Memoranda stated, among other things, that in deciding whether a company was deserving of leniency a company's entire history of misconduct would be considered (not just conduct similar to the matter under investigation), and to receive credit for cooperation, a company would be required to provide information about all individuals involved in misconduct (not just those who were substantially involved in the misconduct). The memoranda also said that deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) would be "disfavored" for corporations with a prior record of misconduct, especially if the past conduct was similar to the present investigation.