On May 9, 2018, Deputy Attorney General Rod Rosenstein announced a new policy for federal enforcement against businesses.
In his words, the new policy approach to enforcement against businesses “encourages coordination among Department components and other enforcement agencies when imposing multiple penalties for the same conduct...The aim is to enhance relationships with our law enforcement partners in the United States and abroad, while avoiding unfair duplicative penalties.”
He suggested that the policy is intended to ensure that federal enforcement is more thoughtful in its approach to DOJ investigations and actions by multiple agencies, suggesting that the government should coordinate so as to avoid “piling on” by using multiple investigations by multiple federal agencies.
The Deputy Attorney General also announced establishment of a Working Group on Corporate Enforcement and Accountability including “Department leaders and senior officials from the FBI, the Criminal Division, the Civil Division, other litigating divisions involved in significant corporate investigations, and the U.S. Attorney’s Offices." The working group will make internal recommendations about white collar crime, corporate compliance, and related issues.
Importantly, however, this policy, which will go in the US Attorney Manual, does not create any rights for those who want to argue the government is violating its own policy. Moreover, as with any new DOJ policy announcement, the devil will be in the degree to which it is actually implemented and internalized in the early decision making by line attorneys and their supervisors in investigations. At a minimum, this new policy will reaffirm certain fundamental principles and provide a reference for discussion between DOJ attorneys and counsel for businesses facing multiple parallel investigations.
Click here to read the Deputy Attorney General's speech announcing these policies.