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The Department of Justice (DOJ) announced last week the advent of a new safe harbor for companies that discover wrongdoing by the acquired business in the course of an M&A transaction. Buyers hoping to take advantage of this avenue for leniency would be well-advised to conduct thorough diligence and act quickly to report any wrongdoing they uncover, as the potential upsides for those who do so may be considerable in light of the DOJ’s new policy.Continue Reading DOJ Announces Mergers & Acquisitions Safe Harbor Policy

On September 29, 2023, Albemarle Corporation (“Albemarle”), a global chemical manufacturer, reached an agreement with the U.S. Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) to resolve investigations into violations of the U.S. Foreign Corrupt Practices Act (“FCPA”). This settlement is the culmination of a five-year investigation stemming from bribe payments made by Albemarle’s third-party sales representatives and employees of a subsidiary to government officials in Vietnam, Indonesia, and India to obtain government contracts in the chemical catalyst business between 2009 and 2017.Continue Reading Albermarle Agrees to Pay $218 Million to Settle Foreign Bribery Probe

At the Global Investigations Review Annual Meeting in New York on September 21, 2023, Principal Associate Deputy Attorney General Marshall Miller (“Miller”) delivered remarks that provide an invaluable glimpse into the Department of Justice’s (“DOJ’s”) current and forthcoming priorities and initiatives on corporate criminal enforcement. Miller’s remarks shed light on various key areas of DOJ’s enforcement focus, including DOJ’s continued encouragement of voluntary self-disclosure and increasing attention towards safeguarding national security interests. Miller also emphasized DOJ’s commitment to consistency, predictability and transparency in its corporate enforcement work with an aim that such commitment will help companies better predict outcomes for certain criminal violations and implement robust compliance programs to prevent criminal prosecution.Continue Reading A Look into DOJ’s Current Corporate Criminal Enforcement Landscape

The Department of Justice’s recent criminal self-reporting policy changes are beginning to show results, according to Assistant Attorney General Kenneth Polite Jr. Speaking at the New York City Bar Association’s White Collar Conference on May 24, Polite said that prosecutors are seeing an uptick in corporate self-reporting.Continue Reading DOJ Touts Emerging Results from New Corporate Crime Self-Reporting Initiatives

It has been another busy year for the Department of Justice’s Procurement Collusion Strike Force (PCSF). Formed in 2019, the Department of Justice created the PCSF, a joint law enforcement effort to combat antitrust crimes and related fraudulent schemes that impact government procurement, grant, and program funding at all levels of government – federal, state and local. The PCSF is a constellation of partnerships among the Antitrust Division of the U.S. Department of Justice, multiple U.S. Attorneys’ Offices around the country, the Federal Bureau of Investigation (FBI), and the Inspectors General for multiple federal agencies working together to crack down on unlawful anticompetitive activities in the public procurement process.Continue Reading Government Contracting Companies Beware: DOJ’s Procurement Collusion Strike Force is Global, Growing, and Going Strong

The Department of Justice (DOJ) lost its third jury trial in its mission to secure criminal convictions against companies and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted four home healthcare staffing executives of violating Section 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with entering into an approximately two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages.[1] After the District Court declined to dismiss the indictment, holding the DOJ had successfully alleged a per se conspiracy to fix wages and allocate employees, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, many of whom served as translators for U.S. forces there—admitted that they discussed setting wage levels and refraining from hiring each other’s employees, and even drafted an agreement with signature lines that outlined the terms of defendants’ discussions.[2] Defendants argued that they never reached an agreement in violation of Section 1 because the draft agreement was never signed. Defense counsel emphasized in opening statements that in defendants’ culture, “when dealing with business matters . . . the only way to confirm a commitment is to put it into a formal written contract.” Given the verdict, it appears the jury agreed.Continue Reading DOJ Loses Third Consecutive Criminal Trial in Antitrust Labor Case

On February 22, 2023, the U.S. Department of Justice (DOJ) announced a new nation-wide policy to incentivize companies to self-report criminal activity. Among the cited benefits of self-reporting are discounts on fines and non-prosecution agreements. This new policy arrives on the heels of the “Monaco Memo,” issued in September 2022 by Deputy Attorney General Lisa Monaco, which directed each prosecutorial DOJ component to review its policies on corporate voluntary self-disclosures and update to reflect the guidance’s core principles. The policy also is in addition to guidance from Attorney General Merrick Garland, who in December 2022 emphasized prosecutorial leniency in criminal cases. Together, these memos show a shift from prior administrations, which emphasized prosecuting the “most serious, readily provable offense,” not leniency for self-disclosures. Notably, the new policy does not impact individual actors, who, since the 2015 Yates Memo, still are a DOJ priority. Indeed, the new policy emphasizes that crediting voluntary self-disclosure by companies will help DOJ “ensure individual accountability” for individual criminal conduct. We break down key elements of the DOJ’s policy below, including our quick thoughts on how this policy may impact corporate decisions going forward.Continue Reading Corporate Voluntary Self-Disclosure (VSD) of Criminal Activity: More of the Same or a Real Sea Change?

The inattention some companies pay to their ethics and compliance program never ceases to surprise us. You’d think the frequency of DOJ press releases and prosecutions holding companies accountable for employee wrongdoing would be enough to scare any business into directing more resources at prevention. But alas, many businesses, often over the protestations of their under-resourced Chief Ethics and Compliance Officers (CECOs), continue to think they can get by with a minimalist approach to ethics and compliance. Our experience suggests otherwise.Continue Reading DOJ’s Renewed Focus on Corporate Ethics & Compliance Programs Highlights Importance of Organizational Integrity

On March 2, 2022, Deputy Assistant Attorney General Richard Powers laid out a significant and aggressive criminal enforcement agenda for the Antitrust Division of the Department of Justice. While speaking at the ABA National Institute on White Collar Crime in San Francisco, CA, Powers began his remarks by noting that the Division’s Criminal Section currently had 18 indicted cases against 10 companies and 42 individuals, including 8 CEOs or Presidents. DAAG Powers also noted that the Section had 146 open grand jury investigations – more than at any time in the last thirty years and “expect[ed] to stay busy this year and beyond.”Continue Reading Executives Beware: DOJ Antitrust Division is Taking a Hard Look at a Wide Spectrum of Potential Criminal Violations