On 15 September 2022, Deputy Attorney General Lisa Monaco issued a memorandum to Department of Justice (“Department” or “DOJ“) prosecutors entitled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group” (“Second Monaco Memo” or “Memo“).1 As has become common in recent years (with a brief intermission under Deputy Attorney General Rod Rosenstein who objected to the practice), such memoranda and other Department pronouncements have come to herald key developments in DOJ policy on corporate criminal enforcement and related practice. These memoranda are therefore closely watched by the defense bar and corporate counsel alike. Indeed, this is the second such memorandum issued by Monaco in the past year. Monaco’s first memorandum issued in October 2021 (“First Monaco Memo“)2, announced, among other initiatives, the establishment of a Corporate Crime Advisory Group, to review the Department’s approach to corporate criminal enforcement.
The Second Monaco Memo presents the findings of that advisory group and the changes to DOJ policy regarding corporate criminal responsibility and individual accountability that are to be introduced as a result.
While the Second Monaco Memo covers a lot of ground, many of the topics addressed either reiterate, reinforce or supplement existing DOJ policy and practice. There are however a number of areas where the Second Monaco Memo introduces important new policies or initiatives which are worthy of particular attention. We consider the most significant of these to be:
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1 Further Revisions to Corporate Criminal Enforcement Policies, September 15, 2022.
2 Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies.
Geoff Martin is a partner in the Litigation and Government Enforcement practice group in Washington, DC. Geoff started his career in Baker McKenzie’s London office in 2007 and moved to Washington DC in 2012. Geoff represents clients in matters before the federal government arising out of anti-corruption, trade sanctions, fraud, anti-money laundering, national security, and related enforcement actions. He also represents clients in civil and criminal matters in federal court. Geoff has extensive experience conducting internal investigations relating to such matters around the world.
Maria Piontkovska is an associate in Baker McKenzie’s Los Angeles office. Maria advises clients on reducing anti-corruption compliance risks stemming from operating business in emerging markets and handles internal investigations and related interactions with law enforcement authorities.
A. Marilyn Batonga represents domestic and international corporate clients in a broad range of compliance and dispute resolution matters, including criminal investigations by the US Department of Justice, the US Securities and Exchange Commission, and other government agencies. She advises clients on the design and implementation of compliance programs and performs due diligence on high-risk business transactions.
Maurice A. Bellan is the Managing Partner of the Washington, DC office and a member of the Global Dispute Resolution and North America Litigation and Government Enforcement Steering Committees. He is a former trial attorney at the US Department of Justice and is experienced in a broad range of fraud and anti-corruption matters. Maurice was recently named by Savoy magazine as one of the most influential African-American lawyers in the United States.
Reagan Demas has significant experience working on behalf of companies and investors in emerging markets and high risk jurisdictions. He has managed major legal compliance investigations for a variety of Fortune 500 companies and negotiated settlements before the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities, obtaining declinations in a number of matters. He has also conducted risk assessments and due diligence in a variety of legal compliance matters for companies across industries and has worked on the ground evaluating partnerships, investments and other business opportunities worldwide. Reagan has written and spoken extensively on emerging compliance trends, ESG legal risk and best practices, bribery/corruption and doing business in Africa. In 2019, Reagan was selected as a BTI Client Service All Star by corporate counsel in recognition of being a leader in superior client service. He is the founder and chief editor of Baker McKenzie’s Global Supply Chain Compliance Blog and serves on the steering committee of the North American Litigation and Government Enforcement Practice Group. Reagan serves as a member of the Global Steering Committee of the Firm’s Industrials, Manufacturing and Transportation (IMT) Industry Group.
William (Widge) Devaney is a partner in the Firm’s North America Litigation and Government Enforcement Group in New York, co-chair of the North America Government Enforcement Practice and co-chair of the Global Investigations, Compliance & Ethics Practice.
Terry Gilroy is a partner in the New York office of Baker McKenzie and a member of the Compliance and Investigations Practice Group. Prior to joining the Firm in 2018, Terry served as Americas Head of the Financial Crime Legal function at Barclays. Terry advises businesses and individuals on white collar and financial crime issues and has significant experience conducting investigations relating to compliance with the US Foreign Corrupt Practices Act (FCPA) and related bribery and corruption statutes, economic sanctions regulations as administered by the US Department of the Treasury’s Office of Foreign Assets Control (OFAC), and the Bank Secrecy Act and related anti-money laundering (AML) regulations and statutes. Terry spent six years on active duty in the United States Army as a Field Artillery officer.
Jessica is a partner in our San Francisco and Palo Alto offices. For more than two decades, she has been deeply involved in defending a range of preeminent government enforcement cases in the tech industry in California and beyond. Jess has helped a number of well-known public and private companies navigate high-profile crisis situations involving cutting-edge government enforcement and compliance issues. She has handled dozens of internal investigations for tech companies and has defended executives, employees, and groups of witnesses as “pool counsel” in cases at the forefront of evolving government enforcement including trade secrets and economic espionage, crypto-currencies, blockchain, and financial technology. Clients appreciate Jess for her practicality, complex strategic thinking, and deft ability to assemble effective defense teams domestically and across the globe.
Jerome Tomas is Chair of the Firm’s SEC and Financial Institutions Enforcement Group and co-chair of the North America Government Enforcement practice group. He has been recognized by Chambers for White Collar Crime & Government Investigations. He represents multinational companies faced with government investigations and conducts internal investigations to assess and remediate legal and compliance concerns in domestic and global operations. With his experience as a former member of the SEC Division of Enforcement’s Cyberforce, the agency’s internet and cyber fraud unit, Jerome regularly advises companies involved in data security breaches and incident response. Jerome now leads teams of lawyers to address government law enforcement perspectives and where necessary, meet and refute government legal theories of corporate and individual liability head-on, while also being pragmatic and business-oriented for management and boards to compete internationally.
Peter Tomczak serves as the Chair of Baker McKenzie’s North America Litigation and Government Enforcement Practice Group. Peter serves on the North America Pricing Committee, and oversees the practice group’s development and review of non-hourly fee based arrangements, or AFAs. He joined Baker McKenzie in 2003, after having served as a law clerk for the Delaware Court of Chancery.
Brian Whisler is the immediate past Chair of the DC Litigation and Government Enforcement Practice Group and a member of the Compliance and Investigations, Dispute Resolution and Global Health Care and Life Sciences Practice Groups. Prior to joining Baker McKenzie, Brian served for fifteen years as a federal prosecutor with the US Department of Justice. During that time, he was the Criminal Chief Assistant US Attorney in the Eastern District of Virginia, Richmond, overseeing and prosecuting cases ranging from white collar crime, violent crime, public corruption, and terrorism. His trial practice focused predominantly on white collar cases, including health care fraud, securities fraud, public corruption, money laundering and tax fraud. He previously served as an Assistant US Attorney for the Western District of North Carolina for ten years, where he focused on white collar prosecutions and received the Attorney General’s Award for his prosecutions in a money laundering investigation resulting in convictions of more than 25 defendants after three jury trials and multiple guilty pleas. He also served as Chief of Appeals and Health Care Fraud Coordinator for the same jurisdiction. Brian has also served as adjunct professor at the University of Richmond, TC Williams School of Law and an instructor at the National Advocacy Center for the US Justice Department in Columbia, South Carolina.
Nancy Rosenfeld is of counsel in the Firm’s Washington, DC office. She advises clients on corporate compliance issues, including the application of the US Foreign Corrupt Practices Act (FCPA) and related legislation to multinational companies operating in emerging markets.
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