At the American Bar Association’s National Institute on White Collar Crime, the Department of Justice’s (“DOJ”) Acting Head of the Criminal Division, John Cronan, announced that the Criminal Division will use the FCPA Corporate Enforcement Policy (“the Policy”) as “nonbinding guidance” in other areas of white-collar enforcement beyond the FCPA. As a result of this expansion, absent aggravating factors, DOJ may more frequently decline to prosecute companies that promptly self-disclose misconduct, fully cooperate with DOJ’s investigation, remediate in a complete and timely fashion, and disgorge any ill-gotten gains. Cronan pointed to the DOJ’s recent decision to decline charges against a global bank, after the bank agreed to pay back $12.9 million in profits the DOJ claimed it obtained as a result of an alleged foreign exchange front-running scheme, as an example of the effect of this new wider application of the Policy.
At the same conference, DOJ officials promised vigorous enforcement and pushed back on the notion that the current administration was relaxing its enforcement efforts targeting white collar crime. Deputy Attorney General Ron Rosenstein outlined the DOJ’s enforcement priorities, and in doing so specifically noted that the DOJ wants to “avoid imposing penalties that disproportionately punish innocent employees, shareholders, customers, and other stakeholders.” Rosenstein pledged that DOJ would hold individual wrongdoers responsible for corporate criminal conduct, demonstrating the DOJ’s ongoing focus on individual accountability.