Today, we continue our exploration of the Monaco Memo by considering the sections relating to the evaluation of cooperation during the pendency of the investigation and the evaluation of a company’s compliance program at the conclusion of the resolution. These portions of the Monaco Memo should be studied intently by every compliance professional as they lay out what the Department of Justice (DOJ) will require to grant discounts under the FCPA Corporate Enforcement Policy.
Evaluation of Cooperation
Cooperation with the DOJ during the pendency of an investigation has always been a critical factor of the overall costs of a Foreign Corrupt Practices Act (FCPA) resolution since this factor can be added as a discount under the US Sentencing Guidelines and the FCPA Corporate Enforcement Policy. Essentially a company can double dip in discounts with superior cooperation. Indeed, we have seen companies have the fines and penalties increase by tens of millions when they failed to cooperate.
The Monaco Memo acknowledges what a corporation can obtain by stating, “Cooperation can be a mitigating factor, by which a corporation – just like any other subject of a criminal investigation – can gain credit in a case that is appropriate for indictment and prosecution.” Further, “Credit for cooperation takes many forms and is calculated differently based on the degree to which a corporation cooperates with the government’s investigation and the commitment that the corporation demonstrates in doing so. The level of a corporation’s cooperation can affect the form of the resolution, the applicable fine range, and the undertakings involved in the resolution.”
Principal Associate Deputy Attorney General (DAG) Marshall Miller, recently said in a speech, “I trust one thing came through loud and clear: the Department is placing a new and enhanced premium on voluntary self-disclosure.” This is where the timeliness issue becomes so critical. Miller went on to state, “The DAG also provided important guidance on corporate cooperation. The key point I want to highlight relates to timeliness. In building cases against culpable individuals, we have heard one consistent message from our line attorneys: delay is the prosecutor’s enemy — it can lead to a lapse of statutes of limitation, dissipation of evidence, and fading of memories. The Department will expect cooperating companies to produce hot documents or evidence in real time. And your clients can expect that their cooperation will be evaluated with timeliness as a principal factor. Undue or intentional delay in production of documents relating to individual culpability will result in reduction or denial of cooperation credit. Where misconduct has occurred, everyone involved — from prosecutors to outside counsel to corporate leadership — should be “on the clock,” operating with a true sense of urgency.”
Miller fleshed out the Monaco Memo regarding this DOJ expectation when he intoned that the DOJ expects “cooperating companies to produce hot documents or evidence in real time.” Moreover, “The key point I want to highlight relates to timeliness.” This could mean literally when you find a smoking, still hot or even cold gun you had better pick up the phone and call the DOJ. Finally, when it comes to cooperation credit the DOJ will evaluate companies “timeliness as a principal factor.” It cannot be stated any plainer or more simply than that.
Evaluation of Corporate Compliance Programs
Equally important for compliance professionals was the section on evaluating compliance program. The DOJ has presented significant information to the compliance community with the release of the 2019 Evaluation of Corporate Compliance Programs and its 2020 Update. The Monaco Memo recognizes these documents as key components for the DOJ to review compliance programs of companies under investigation. Moreover, although there is no compliance defense to prosecution of illegal conduct, such compliance programs have “a direct and significant impact on the terms of a corporation’s potential resolution with the Department.”
To that end, the Monaco Memo directs prosecutors to “evaluate a corporation’s compliance program as a factor in determining the appropriate terms for a corporate resolution, including whether an independent compliance monitor is warranted. Prosecutors should assess the adequacy and effectiveness of the corporation’s compliance program at two points in time: (1) the time of the offense; and (2) the time of a charging decision. The same criteria should be used in each instance.”
However, the Monaco Memo focused attention on an area given little weight previously in determining the effectiveness of an effective compliance program, that being clawbacks. While compensation, particularly in the form of bonus or other compensation based on positive compliance actions, has long been a part of a best practices compliance program (the carrot) we have not previously seen its equivalent disincentive (the stick).
The Monaco Memo stated, “Corporations can best deter misconduct if they make clear that all individuals who engage in or contribute to criminal misconduct will be held personally accountable. In assessing a compliance program, prosecutors should consider whether the corporation’s compensation agreements, arrangements, and packages (the “compensation systems”) incorporate elements such as compensation clawback provisions – that enable penalties to be levied against current or former employees, executives, or directors whose direct or supervisory actions or omissions contributed to criminal conduct. Since misconduct is often discovered after it has occurred, prosecutors should examine whether compensation systems are crafted in a way that allows for retroactive discipline, including through the use of clawback measures, partial escrowing of compensation, or equivalent arrangements.” This is a change.
Miller expanded on this when he said the DOJ would start with two questions:
- Has the company clawed back incentives paid out to employees and supervisors who engaged in or did not stop wrongdoing?
- Is the company targeting bonuses to employees and supervisors who set the right tone, make compliance a priority, and build an ethical culture?
Miller went on to add, “What we expect now, in 2022, is that companies will have robust and regularly deployed clawback programs. All too often we see companies scramble to dust off and implement dormant policies once they are in the crosshairs of an investigation. Companies should take note: compensation clawback policies matter, and those policies should be deployed regularly. A paper policy not acted upon will not move the needle — it is really no better than having no policy at all.”
My suggestion is that you develop a clawback policy and write it into the contracts of your senior management going forward.
I hope you will join me tomorrow where I look at guidance around monitors and monitorships.
