Skip to main content

On-demand webinar coming soon...

Blog

Department of Justice: 2022 updates to corporate compliance guidance

What the recent updates to DOJ guidance mean for corporate compliance teams

Kelly Maxwell
Content Marketing Specialist, OneTrust
November 8, 2022

View of a city street with government buildings on either side

Corporate compliance officers already have their work cut out for them – but after this year’s updates from the Department of Justice (DOJ), they’ll need to update their executive teams and boards of directors on the new, more aggressive approach to enforcement. In a September 15, 2022, speech at NYU’s Program on Corporate Compliance and Enforcement, US Deputy Attorney General (DAG) Lisa O Monaco stated, “…we won’t accept business as usual. With a combination of carrots and sticks – with a mix of incentives and deterrence – we’re giving general counsels and chief compliance officers the tools they need to make a business case for responsible corporate behavior.”

Following her watershed 2021 memo, this speech and the accompanying memorandum, now commonly called the “Monaco memo 2.0” or version 2 of the Monaco memo, expands the framework for cracking down on corporate crime and announced policy changes focused on individual accountability and speedy case resolution. DAG Monaco, affirming the top priority for the DOJ’s newly-formed Corporate Crime Advisory Group, provided new details regarding individual accountability, corporate enforcement factors, and the usage of independent compliance monitors.

Doubling down on these priorities and allowing for no ambiguity on the DOJ’s fortified focus, Assistant Attorney General (AAG) Kenneth Polite made a speech at the University of Texas the next day, outlining how the DOJ’s Criminal Division will “combat corruption and fraud in our corporate sector” and reduce corporate financial penalties for companies that claw back compensation from offending executives.

The DOJ’s new policy is designed to empower CCOs and their teams, but what does this guidance mean for you? We’re joined by OneTrust Senior Compliance Counsel, Gbemi Yusuff for some expert analysis. Stick with us as we unpack what this DOJ compliance guidance is and what it means for CCOs and CEOs.

Still looking for more expert analysis? Check out this essential whitepaper, What CCOs Need to Know About the DOJ Compliance Certification Requirement, and discover what opportunities and challenges these new policies presents for your program.

Download Whitepaper: What CCOs Need to Know About the DOJ Compliance Certification Requirement

DOJ policy announcements

DAG Monaco announced several Department-wide policy revisions, providing updated guidance on the following 5 policies:

  1. How delays will impact resolution agreements
  2. How a corporation’s unique history of misconduct must be considered when determining appropriate corporate case resolution
  3. The benefits of voluntary corporate self-disclosure of misconduct
  4. The use of independent compliance monitors, including their selection criteria, scope of work, and appropriate monitor oversight
  5. The importance of a strong corporate culture and how prosecutors will evaluate components of a corporate compliance program

The importance of timely cooperation

Acknowledging their need to “do more and move faster,” DAG Monaco outlined the need for speed from companies and individuals. Any intentional delay in disclosures, from both corporations and implicated individuals, “particularly those that show individual culpability,” will result in reduction or flat-out denial of cooperation credit. Further turbocharging their efforts to expedite investigations, DOJ prosecutors will seek criminal charges against individuals prior to or concurrent to entering a resolution against a corporation.

Corporate history of misconduct

According to DAG Monaco, “between 10% – 20% of large corporate criminal resolutions have involved repeat defenders.” Previously, the DOJ announced that prosecutors must consider the entirety of a company’s prior misconduct when determining appropriate resolution, but the Monaco memo outlines more detailed evaluation guidance for corporate recidivism. Placing a greater emphasis on prior misconduct and corporate culture, the DOJ acknowledges that “not all instances of prior misconduct are created equal.” The root cause of the misconduct will be considered.

This holistic view will examine broader issues in a weakened compliance culture, examining shared management teams or executive leadership in recidivist companies. Allowing for zero ambiguity, DAG Monaco stated, “If any corporation still thinks criminal resolutions can be priced in as the cost of doing business, we have a message – times have changed.”

Voluntary self-disclosure and corporate cooperation

The DOJ now expects voluntary self-disclosure from companies, demanding that they “step up and own up to misconduct.” Voluntarily coming forward to self-report is seen as a good indicator of a well-designed compliance program and a healthy corporate culture and is the “clearest path for a company to avoid a guilty plea or an indictment.” The DOJ’s simple goal is “to reward those companies whose historical investments in compliance enable voluntary self-disclosure and to incentivize other companies to make the same investments going forward.”

Most importantly, the DOJ announced a new common principle: “Absent aggravating factors, the Department will not seek a guilty plea when a company has voluntarily self-disclosed, cooperated, and remediated misconduct. In addition, the Department will not require an independent compliance monitor for such a corporation if, at the time of resolution, it also has implemented and tested an effective compliance program.”

For a company to demonstrate their commitment to compliance program enablement, they must concurrently invest in other strategic areas within their organization. According to Yuseff, “How you organize your sales team or other core business operators, outside the compliance function, says more about your values and corporate culture of compliance. Incentivizing and investing in your people shows exactly what you’re prioritizing.”

Screening and monitoring independent compliance monitors

Addressing the call for more transparency, DAG Monaco released “new guidance for prosecutors about how to identify the need for a monitor, how to select a monitor, and how to oversee the monitor’s work to increase the likelihood of success.” To lead with consistency and transparency, DOJ prosecutors will select monitors using a documented process. They will also endeavor to monitor the monitors to “to ensure they remain on the job, on task, and on budget.”

DAG Monaco knows that simply having a compliance department is not enough; “… it must also be backed by, and integrated into, a corporate culture that rejects wrongdoing for the sake of profit. And companies can foster that culture through their leadership and the choices they make.”

Building a culture of compliance has previously been emphasized in DOJ guidance for corporate compliance programs. Now, the DOJ is looking for “compensation systems that use affirmative metrics and benchmarks to reward compliance-promoting behavior.” On the deterrence side, the DOJ is also looking for companies to have and enforce clawback policies that punish misconduct and fraud.

For Yuseff, this is where the DOJ’s guidance clearly demonstrates how to practically empower the corporate compliance function, “How are employees compensated? How is compliance or ethical behavior featured? How do you incentivize people to behave ethically? The DOJ is really highlighting how compensation can help incentivize compliant behavior.”

Criminal Division emphasis on personal liability

AAG Polite took these policy recommendations from DAG Monaco and offered further clarification. Most notable is emphasis on personal liability, described by Polite as the need to “shift the burden of corporate financial penalties away from shareholders – who in many cases do not have a role in misconduct – onto those more directly responsible.” Building off the new guidance from DAG Monaco, AAG Polite spelled out the specific “aggravating factors” the Criminal Division will consider. These “will include, but are not limited to, involvement by executive management of the company in the misconduct, significant profit to the company from the misconduct, or pervasive or egregious misconduct.”

CCO Certifications

In March of 2022, AAG Polite announced a new Criminal Division policy where corporate settlements would require both the Chief Executive Officer (CEO) and the Chief Compliance Officers (CCO) to certify their programs as being “functionally effective” and “reasonably designed and implemented” to detect and prevent violations of the law.

AAG Polite, a former CCO himself, acknowledged the weight of the responsibilities placed on the shoulders of CCOs. According to Yuseff, this fortification and resourcing will ensure that CCOs are “considered members of the executive team and will be empowered to make decisions no one else has the ability to make. CCOs are not the first line of defense, they oversee the first line of defense in the business.”

Carrots and sticks, a vision for the future

The 2022 updates from the DOJ, from both DAG Monaco and AAG Polite, make clear that the DOJ wants to “make the business case for responsible corporate behavior” and emphasize the importance of “individual accountability and corporate responsibility.” DAG Monaco summarizes herself, “In short, we’re empowering companies to do the right thing – and empowering our prosecutors to hold accountable those that don’t.”

AAG Polite also offered his full-throated support, “Taken together, these policies, practices, and personnel decisions demonstrate our unwavering commitment to both individual and corporate accountability, while incentivizing those same actors to invest in strong compliance and internal control measures that consistently, quickly, and effectively prevent, detect, report, and remediate wrongdoing.”

But empowerment is not one-size-fits-all, Yuseff concludes: “Consider your compliance program holistically and examine the gaps you have. Where one company may have the right technology in place, they might suffer from terrible communication or supporting training. By understanding your program’s unique weaknesses, based on this DOJ compliance guidance, you can figure out what is actually most important for you and your resources and then you can prioritize accordingly.”

Ready to demonstrate your commitment to individual and corporate accountability? Download our free whitepaper, What CCOs Need to Know About the DOJ Compliance Certification Requirement.

Download Whitepaper: What CCOs Need to Know About the DOJ Compliance Certification Requirement


You may also like

Webinar

Ethics Program Management

From reactive to proactive: Transforming your ethics & compliance program

Join this webinar to hear experts explore actionable strategies employed by Ethics & Compliance programs to drive a more ethical culture.

September 12, 2024

Learn more

Infographic

Speak-Up Program Management

Modern slavery: Identifying the signs of forced labor in your supply chain

Looking up and down your organization's supply chain for key indicators is critical to preventing, identifying, and stamping out forced labor.

June 25, 2024

Learn more

Webinar

Speak-Up Program Management

EthicsConnect: Speak Up - Balancing Regulation with a Genuine 'Safe Space' for Employees

Network with fellow ethics professionals, collaborate in break out rooms, and learn how to over the challenges of meeting EU Whistleblower Directive compliance from experts.

June 13, 2024

Learn more

Webinar

Ethics Program Management

Drive employee engagement with Ethics Program Management

In this tech talk, we will walk you through the customer's employee journey utilizing our Ethics Program Management suite of tools.

May 21, 2024

Learn more

Webinar

Ethics Program Management

EthicsConnect: Risk - It’s not just for breakfast anymore

Join us for a deep dive into embedding privacy by design into the fabric of your business to promote the responsible use of data.

April 25, 2024

Learn more

eBook

Ethics Program Management

Business messaging apps: A guide to corporate compliance

How can your business use third-party messaging apps while staying compliant? Dive into key usage considerations based on the DOJ’s 2023 guidance.

February 13, 2024

Learn more

Infographic

Third-Party Risk

4 top-of-mind challenges for CISOs

What key challenges do CISOs face going into the new year? Download this infographic to hear what experts from industries across the board have to say.

January 30, 2024

Learn more

Webinar

Third-Party Due Diligence

Best practices for conducting third-party due diligence for ethics & compliance​

Join this webinar for best practices for conducting third-party due diligence for ethics and compliance.

January 11, 2024

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Third-party applications and ephemeral apps

Learn practical advice on how to navigate the risks of ephemeral apps and employee privacy in BYOD world.

December 05, 2023

Learn more

Webinar

Speak-Up Program Management

Navigating the EU Whistleblower Protection Directive: New rules, new risks

Join our expert-led webinar where we explore the EU Whistleblower Protection Directive and practical steps towards compliance. 

November 02, 2023

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Risk assessments

Join our risk assessments experts as we discuss best practices, program templates, and how provide an assessment that provides the best value for your organization.

October 25, 2023

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Investigations

Join our live webinar and learn how to conduct comprehensive ethics investigations that are trustworthy and efficient.

September 07, 2023

Learn more

Webinar

Third-Party Due Diligence

Driving excellence in third-party risk management: An in-depth look at different due diligence approaches

Join our in-depth webinar and learn how to define third-party due dilligence levels and when to apply them during your vendor management lifecycle.

July 20, 2023

Learn more

Webinar

Third-Party Due Diligence

A shortcut to third party due diligence fundamentals

In this webinar, we examine the scope of third-party due dilligence, best practices, and industry trends driving greater scrutiny on third parties.

July 13, 2023

Learn more

Webinar

Third-Party Due Diligence

Sanctions and export controls: Ensuring compliance

Watch our live expert webinar on understanding global sanctions and export controls and how to reduce your organiztion's risk exposure and ensure compliance.

June 29, 2023

Learn more

Video

Third-Party Risk

Third-party management demo

See how OneTrust's third-party management solution can help scale your third-party lifecycle and evaluate vendors with real-time risk intelligence.

June 27, 2023

Learn more

eBook

Ethics & Compliance

Creating an effective code of conduct

In this eBook, learn how to create an effective code of conduct with six key steps. 

June 01, 2023

Learn more

eBook

Third-Party Due Diligence

The global regulations driving third-party due diligence

Download our eBook learn how to start building a robust third-party due dilligence (TPDD) strategy that protects your brand and minimizes risk.

May 30, 2023

Learn more

Webinar

Third-Party Risk

Unpacking the third-party risk regulatory landscape in the Nordic region and beyond

In this live webinar, our expert panel discuss emerging third-party risk regulatory trends in the Nordic region and show how OneTrust can help your business stay complaint.

May 30, 2023

Learn more

Webinar

Third-Party Due Diligence

Ethics live Demo: Third Party Due Diligence webinar

Learn how OneTrust's Third-Party Due Dilligence, backed by Dow Jones, can help provide your business the data it needs to find trustworthy third parties and mitigate risk.

May 18, 2023

Learn more

In-Person Event

Ethics & Compliance

Ethics Exchange: Practical deep dive for third-party due diligence

Organizations are accountable for third-party actions, so they need robust due diligence to protect their reputation. Learn more at our ethics exchange event.

May 11, 2023

Learn more

Checklist

Ethics Program Management

Policy on development and administration of policies template

Get a head start on your ethics program and create a policy on development and administration of policies with our customizable template.

May 10, 2023

Learn more

Webinar

Third-Party Due Diligence

Maturing your third-party due diligence program: Process, data & technology

Experts at OneTrust and Dow Jones discuss third-party due diligence, covering industry trends, challenges, and how to streamline the process with technology.

April 27, 2023 1 min read

Learn more

Webinar

Ethics & Compliance

Unpacking the global third-party due diligence regulatory landscape

Learn how a strategic plan for compliance can help companies eliminate human rights and environmental violations and avoid costly consequences.

March 06, 2023

Learn more

Webinar

Ethics & Compliance

Third party due diligence – A practical deep dive

In this session, we'll look into the scope of third-party due diligence and a deep dive into practical implementation aspects and best practices for organizations.

December 13, 2022

Learn more

Report

Trust Intelligence

Trending toward trust

The "Trending toward trust" report from OneTrust highlights seven key trends that organizations need to know.

December 12, 2022

Learn more

Webinar

Ethics & Compliance

The number one metric for effective compliance programs: Continuous improvement

Join our webinar to learn how to develop and/or maintain a High-Quality E&C Program and what role data analytics play in improving your compliance program.

November 27, 2022

Learn more

Webinar

Ethics & Compliance

Best practices for conducting third-party due diligence for ethics & compliance

In this session, we'll explore the scope of third-party due diligence and best practices, such as industry trends driving greater scrutiny on third parties.

November 16, 2022

Learn more

Webinar

Ethics Program Management

Live demo: Conflicts of interest management webinar

Learn how to develop a holistic disclosure program, how to make it part of your risk assessment, and how to use it to meet regulatory obligations.

November 01, 2022

Learn more

Checklist

Ethics & Compliance

The CECO’s third party checklist

Use this checklist to ensure that your ethics and compliance program is effectively managing third parties across the entire relationship lifecycle.

October 28, 2022

Learn more

eBook

ESG & Sustainability

The CECO’s guide to managing third parties eBook

Download this eBook to learn the six steps in the lifecycle of risk-based third-party due diligence, compliance terms, and conditions, payment terms, etc.

October 27, 2022

Learn more

White Paper

Ethics & Compliance

Central vs. local intake and case management under the EU Whistleblowing Directive white paper

Download this white paper to learn the specific intake and case management requirements for local subsidiaries and offices across Europe.

October 25, 2022

Learn more

Webinar

Ethics & Compliance

The role of disclosures in risk assessment and management

In this webinar, we’ll discuss developing a holistic disclosure program, making it part of your risk assessment, and using it to meet regulatory obligations.

October 04, 2022

Learn more

White Paper

Ethics & Compliance

What CCOs need to know about the DOJ compliance certification requirement white paper

Download our white paper to learn how the DOJ’s new policy will empower CCOs, and discover what opportunities this new policy presents for your program.

September 01, 2022

Learn more

Webinar

Ethics & Compliance

How to transform your ethics management program through effective employee engagement

In this webinar, we’ll discuss how to develop a successful ethics management program and how to promote trust by developing awareness.

July 28, 2022

Learn more

White Paper

Ethics & Compliance

DOJ’s 2020 update to the evaluation of corporate compliance programs

This white paper explores the 2020 DOJ Compliance Guidance Update and where it takes corporate compliance programs this year and beyond.

July 15, 2022

Learn more

Checklist

Ethics & Compliance

DOJ self-assessment checklist

This enhanced DOJ guidance sets out a baseline, or the minimum standards, to demonstrate an effective ethics & compliance (E&C) program.

July 08, 2022

Learn more

Webinar

Ethics & Compliance

Conflicts of interest and disclosures

Join this roundtable with your peers and experts in ethics and compliance to discuss how to build a successful conflict of interest management program.

July 08, 2022

Learn more

Webinar

Ethics & Compliance

Effective policy governance and distribution

Join this roundtable to discuss how to create effective policies, run effective campaigns and report on each policy’s performance and influence. 

July 08, 2022

Learn more

Webinar

Ethics Program Management

Local vs. central intake and case management: What the EU Whistleblower Directive requires

One of the challenges to come out of the EU Whistleblower Protection Directive is how companies should adopt local vs. centralized case management.

July 06, 2022

Learn more

Webinar

Ethics & Compliance

GDPR and the EU Whistleblower Protection Directive webinar

Join this webinar to learn how to review your whistleblowing processes to comply with the EU Whistleblower Protection Directive, the GDPR and others.

July 06, 2022

Learn more

Webinar

Ethics & Compliance

Hotline reporting under the EU Whistleblower Protection Directive: Unseen consequences, issues & practicalities

While there have been many articles and discussions around the EU Whistleblower Protection Directive, several significant issues have largely gone unnoticed. 

July 06, 2022

Learn more

Webinar

Ethics & Compliance

A hotline innovation masterclass: communications, awareness & confidentiality

Learn how to effectively train and raise awareness on your hotline and how to share information on the Directive so that your company remains compliant.

July 06, 2022

Learn more

Webinar

Ethics & Compliance

Evaluating hotline vendor compliance with the EU Whistleblower Protection Directive

Join us to learn how to choose a hotline vendor, and we also cover the onboarding and implementation process so that you can meet the Directive's deadline.

July 06, 2022

Learn more

Interactive Tool

Ethics & Compliance

Compliance KPIs worksheet interactive tool

Use this worksheet to understand what data you currently have, what you're lacking that may be important, and what certain data points may indicate.

July 05, 2022

Learn more

Webinar

Ethics & Compliance

Whistleblower retaliation under the EU Whistleblower Protection Directive: the reverse burden of proof

Learn how to implement anti-retaliation measures, and how to detect retaliation throughout the whistleblowing process using some new and novel techniques.

July 05, 2022

Learn more

eBook

Ethics & Compliance

14 key requirements to effective conflicts of interest management

Read this eBook to learn the key requirements that are fundamental to building a successful conflict of interest management program.

June 30, 2022

Learn more

Checklist

Ethics & Compliance

Annual compliance program checklist

Download our annual review compliance checklist to evaluate your E&C compliance program, identify key gaps, and prepare for the future.

June 30, 2022

Learn more

Checklist

Ethics & Compliance

Anti-retaliation checklist for compliance programs

Use these 19 questions to take a holistic look at how your program can improve training, investigations, policies, & more to prevent retaliation before it occurs.

June 17, 2022

Learn more

Checklist

Ethics & Compliance

EU Whistleblower Directive checklist

Assess your company's EU Whistleblower Directive compliance with this interactive checklist. 

June 16, 2022

Learn more

eBook

Ethics & Compliance

Ultimate guide to the EU Whistleblower Protection Directive

Download our free eBook on the EU Whistleblower Protection Directive learn its key requirements, who's protected, and answers to common questions. 

June 07, 2022

Learn more

eBook

Ethics & Compliance

The secret to effective policy management

Download this eBook and discover how a centralized policy management system helps drive compliance and ethics policy effectiveness. 

May 11, 2022

Learn more

eBook

Ethics & Compliance

How to build a speak-up culture

Download this step-by-step guide on building a speak-up culture and improve reporting rates. 

April 25, 2022

Learn more

eBook

Ethics & Compliance

Quick guide to the EU Whistleblower Directive

Use this guide to learn how the new EU Whistleblower Directive will be enforced, who is subject to it, and how to comply with it.

April 20, 2022

Learn more

Infographic

Ethics & Compliance

Infographic: The impact of an effective helpline on speak-up culture

Download this infographic and learn how an effective helpline is key to building a speak-up culture. 

April 08, 2022

Learn more

Interactive Tool

Ethics & Compliance

A simple conflict of interest disclosure form template

Download and customize this conflict of interest disclosure template to begin collecting voluntary disclosures at your organization.

April 05, 2022

Learn more

Webinar

Third-Party Due Diligence

7 best practices for conducting third-party due diligence for ethics & compliance

Watch this webinar and learn the seven best practices for third-party due diligence. 

January 03, 2022

Learn more

Webinar

Privacy & Data Governance

Data breach vs. ethics breach: How to prepare for both

In this webinar, we review case studies and tips from recent breaches and analyze which situations qualify as an "ethics breach."

July 07, 2021

Learn more