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Coordination or Duplication? DOJ Adopts New Policy to Prevent 'Piling On' of Corporate Penalties
In May 2018, the Department of Justice (DOJ) announced a new policy to address a growing problem in white-collar criminal and civil enforcement. With increased frequency, law enforcement investigations of financial institutions and multinational corporations involve cooperation and information-sharing among governments, as well as among U.S. federal, state and local agencies. As Steven R. Peikin, co-director of the U.S. Securities and Exchange Commission's (SEC) Division of Enforcement, observed in a speech in November 2017: “The level of cooperation and coordination among regulators and law enforcement worldwide is on a sharply upward trajectory.” As a result, companies have faced multiple — and often duplicative — penalties in numerous jurisdictions, particularly in the area of anticorruption enforcement.
With the adoption of its Policy on Coordination of Corporate Resolution Penalties (the Policy), the DOJ is seeking to discourage the unnecessary “piling on” of enforcement actions and duplicative criminal penalties on corporate wrongdoers. This nonbinding policy has been added to the U.S. Attorneys' Manual, at Section 1-12.100.
While the Policy is new to the DOJ as a whole, it is not an entirely new concept. The DOJ's Fraud Section often coordinates with foreign law enforcement counterparts on multijurisdictional anti-corruption investigations and, in recent years, has agreed to split penalties among them. However, it remains to be seen how the Policy will be implemented by other sections of DOJ that conduct multijurisdictional investigations, and whether other domestic law enforcement agencies will adopt similar policies. The Policy also leaves open the possibility that in certain cases, DOJ might impose penalties without regard to potential duplication. Thus, while the Policy is a welcome affirmation of the Department's principles, its practical significance is hard to assess.
The New Policy
Deputy Attorney General Rod Rosenstein announced the Policy in an address to the New York City Bar White Collar Crime Institute. See, Rod Rosenstein, Deputy Att'y Gen., Deputy Attorney General Rod Rosenstein Delivers Remarks to the New York City Bar White Collar Crime Institute (May 9, 2018) (http://bit.ly/2OUb0wP). In his speech, Rosenstein focused on the DOJ's reputation for fairness, and recognized that repetitive punishment for the same behavior may be unnecessary and ineffective in deterring unlawful conduct.
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