The 2022 Monaco Memorandum: Changes to DOJ Corporate Enforcement Policy

The DOJ recently announced a series of revisions to its policies addressing how prosecutors evaluate and treat, and resolve cases against, corporate defendants in criminal matters. The policy updates are an effort to provide greater transparency and predictability for corporate defendants to incentivize self-disclosures and cooperation. The updates also highlight DOJ’s continued emphasis on bringing cases against executives — and the expectation that companies help DOJ to do so.  The Department-wide changes come at a time when DOJ’s Antitrust Division has been particularly active. This article summarizes core aspects of the Antitrust Division’s Leniency Program, while also outlining key Department-wide updates.  Among other changes, those Department-wide policy revisions:  (i) enhance uniformity across the Department concerning voluntary disclosures; (ii) establish standards to incentivize faster disclosures regarding culpable individuals; (iii) provide clearer standards for how prosecutors will assess prior corporate misconduct, whether criminal or civil; (iv) afford greater transparency regarding the use and selection of compliance monitors; and (v) include new guidance for how DOJ will assess corporate compliance programs. This article also examines the interplay between the Department-wide policy updates, which emphasize individual culpability, and the Antitrust Division’s immunity policies as to executives under its three decades-old Leniency Pr