Representatives from the Department of Justice, including the Attorney General himself, hit a consistent theme throughout with their remarks at the ABA’s National Institute on White Collar Crime, held March 2-4 in San Francisco, California—the Department will be ramping up enforcement in virtually all areas of white collar crime. Dykema attorneys Becky James, Jason Ross, and Mark Chutkow attended the conference and provide their key takeaways.

U.S. Attorney General Merrick Garland addressed the group via video and promised more resources devoted to white collar enforcement under the current administration, with a particular focus on prosecutions of individuals. His remarks are in line with those of Deputy Attorney General Lisa Monaco, who spoke to the ABA at last year’s National Institute on White Collar Crime and announced, among other things, a “surge” of resources devoted to criminal fraud, encouragement of “bold” prosecutions, and an emphasis on individual accountability, including requiring corporations seeking cooperation credit to identify all individuals involved in misconduct. Attorney General Garland’s remarks also followed close on the heels of his announcement on March 2, of the launch of Task Force KleptoCapture, dedicated to enforcing the sanctions recently imposed against Russia through the use of criminal prosecutions and seizure of assets.

The Attorney General’s comments at this year’s conference were reinforced by Assistant Attorney General and Chief of the Criminal Division, Kenneth Polite. Polite was passionate in his remarks about the need for greater enforcement and more vigorous prosecutions. He noted that the DOJ will continue to consider harm to victims in charging decisions, and policies on deferred prosecutions for corporations. He encouraged companies seeking cooperation credit to make early and meaningful efforts to redress victim harms. He likewise emphasized individual accountability but also made clear that corporations will be expected to maintain a corporate culture and effect remediation where necessary that will significantly impact individual decision-making.

Doha G. Mekki, Principal Deputy Assistant Attorney General for the Antitrust Division, delivered the keynote address at the Women in White Collar luncheon. She promised significantly tougher enforcement of Sherman Act violations, and in particular a greater emphasis on criminal enforcement. Deputy Assistant Attorneys General Lisa Miller and Arun Rao, with the Criminal and Civil Divisions respectively, tag-teamed to discuss the greater demands being placed on corporations under the Department’s new corporate guidelines, as announced by Lisa Monaco. In particular, they emphasized that they will be taking a harder and broader look at a company’s history of misconduct, as well as its identification of all individuals involved in misconduct, in considering corporate resolution agreements in white collar matters, and will likely be demanding a greater use of monitors to enforce those agreements.

Other white collar enforcement trends noted at the conference were the continued emphasis on health care and pandemic stimulus fraud, along with increased regulatory interest in cybersecurity, the cryptocurrency industry, and corporate environment, social, and governance (ESG) issues.

When it came to sentencing, representatives from the Department, the Sentencing Commission, and the private sector all seemed to agree that the federal sentencing guidelines are overdue for reexamination and possibly overhaul. Speakers bemoaned the often overly harsh sentences called for under the guidelines, and even more so under mandatory minimum sentences established by Congress. However, the enthusiasm for lighter sentences for white collar defendants was counterbalanced by a panel of district judges, who noted the disparity they saw between the treatment of the generally privileged white collar defendants and other defendants who are often underprivileged and of color. While sentences for drug crimes and other street crimes may come down, it is unlikely that sentences for white collar defendants will decline, particularly in light of DOJ’s newfound fervor for enforcement of corporate crime and criminal fraud.

If you have any questions about the information in this alert, or about government investigations and corporate compliance in general, please contact Becky James (210-554-5527 or [email protected] ), Mark Chutkow (248-203-0715 or [email protected] ), Jonathan Feld (312-627-5680 or [email protected] ), Jason Ross (214-462-6417 or [email protected] ), or your Dykema relationship attorney.