Enforcement Policy at the U.S. Department of Justice Criminal Division Continues to Evolve

This week, on Tuesday, January 17, the Department of Justice’s (“DOJ”) Criminal Division’s Assistant Attorney General, Kenneth Polite, sent an “undeniable message” that companies should come forward and do the right thing by self-disclosing misconduct, fully cooperating, and timely remediating potential criminal violations.[1] If they do, they will be rewarded by revisions to the Criminal Division’s Corporate Enforcement Policy, under which the Criminal Division will now accord, or recommend to a sentencing court, at least 50%, and up to 75% off of the low end of the U.S. Sentencing Guidelines fine range, except in the case of a criminal recidivist. For criminal recidivists, this reduction would generally not be from the low-end of the fine range, and prosecutors would always have discretion to determine the starting point within the Guidelines range. The DOJ’s revision is significant, because it is an increase from the previous potential maximum reduction of 50% off the Guidelines range. Furthermore, Mr. Polite noted that, in these circumstances, the Division will not generally require a corporate guilty plea, even for criminal recidivists, absent multiple or particularly egregious aggravating circumstances.

Mr. Polite explained that the revised policy still offers benefits to companies that do not voluntarily self-report, as long as they fully cooperate and timely and appropriately remediate. To incentivize cooperation and remediation, in such case, the Criminal Division will recommend up to a 50% reduction off of the low end of the Guidelines fine range, which is twice the maximum amount of a reduction available under the prior version of the policy. But for a recidivist, any reduction would not be off the low end of the Guideline range. Prosecutors also enjoy the discretion to determine the specific percentage reduction and starting point in the range based on the particular facts and circumstances.

These revisions are intended to promote the Criminal Division’s goal of achieving individual accountability. The Criminal Division believes that holding individuals accountable, including senior management, is promoted when companies come forward to assist.

Although the DOJ Antitrust Division follows its own corporate enforcement policy,[2] antitrust lawyers may be well served by taking into account the new policy changes described by Mr. Polite when discussing leniency with the Antitrust Division.

For more information, please contact our attorneys in SGR’s Litigation Practice Group. 

[1] Mr. Polite’s speech is available Online at Assistant Attorney General Kenneth A. Polite, Jr. Delivers Remarks on Revisions to the Criminal Division’s Corporate Enforcement Policy | OPA | Department of Justice

[2] 7-3.000 – Criminal Enforcement | JM | Department of Justice

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