The (re)View of the ABA’s 37th Annual White Collar Institute from 30,000 Feet: Defense Bar Wonders, Are the Government’s Enforcement Priorities for 2022 Too Lofty?
As we flew home last weekend from the ABA’s annual white collar conference, we found ourselves reflecting on the insights and takeaways from the stellar lineup of speakers and panelists this year. Between the receptions that brought good food, good drinks and much-welcomed time for attendees to catch up (which some might say was their main event—not us, of course, we were there for the blog content), we heard remarks from government enforcers and regulators about their priorities for 2022 and beyond, as well as comments from prominent defense bar members questioning whether those priorities may go a bit too far.
On the second day of the conference, we heard from Attorney General Merrick Garland, who delivered the E. Lawrence Barcella, Jr., Memorial Address, and Assistant Attorney General of the Criminal Division, Kenneth Polite, who offered the institute’s keynote address. Their remarks reinforced many of the key takeaways from this year’s conference about the government’s regulatory and enforcement priorities across the spectrum of white collar topics:
- Corporate crime is a DOJ priority. Both Garland and Polite emphasized that the Department will vigorously pursue corporate crime and noted that they view corporate enforcement as critical in ensuring that the public can trust the government to do what is right and has faith in the rule of law. These comments echoed those of other top DOJ officials at the conference, including those of Deputy AAG Richard Powers and Principal Deputy AAG Doha Meki, who signaled that the DOJ’s Antitrust Division is poised to begin charging criminal violations for anticompetitive monopolistic behavior under Section 2 of the Sherman Act for the first time since the 1970s.
- DOJ is focused on aggressively pursuing individual wrongdoers. This year, we heard Department officials repeatedly emphasize that its focus across DOJ’s divisions is first and foremost on pursuing individuals who engage in corporate wrongdoing, because, as AG Garland put it, corporations act only through individuals. AAG Polite harkened back to Deputy AG Lisa Monaco’s speech at the conference last October, stating that, because of the Department’s focus on individuals, corporations must notify the department of “all relevant, non-privileged facts and evidence about the misconduct and all of the individuals involved” in order to receive any credit for cooperation.
- DOJ is bolstering its resources. Garland noted that, in addition to hiring additional personnel and investing new funds into the Department, DOJ is boosting its resources through “force-multipliers,” including DOJ’s partnerships. He briefly discussed just a few of DOJ’s key partnerships, including the recently announced Task Force KleptoCapture. Other panelists during the conference like David Last, Chief of the DOJ’s FCPA Unit, called the Department’s cooperation with foreign law enforcement agencies a “gamechanger” for 2022.
Juxtaposed against this unified refrain from the regulators and enforcers in attendance came an understandably mixed reaction from the defense bar to these priorities. It’s inescapable that white collar defense lawyers get their business from government investigations into alleged or potential wrongdoing by the organizations and individuals they defend. Still, many prominent members of the defense bar at this year’s conference pushed back against the aggressiveness of the government’s stated enforcement priorities for 2022.
Kathryn Ruemmler, for example—who is currently General Counsel of Goldman Sachs but previously served as White House counsel for President Barack Obama, a federal prosecutor, and a member of the defense bar—did not hesitate to share her skepticism about the Department’s October announcement that DOJ would appoint more independent monitors as part of criminal settlements. Ruemmler stated, “when you start getting into monitors, the Department starts to feel and I think look a bit more like a regulator” rather than a law enforcement entity. She also expressed worry that the broad directives from DOJ leadership regarding the pursuit of individual wrongdoers will lead to its lower ranks getting out over their skis; she cautioned prosecutors against “bringing cases where there’s a real question about whether or not someone has really engaged in criminal wrongdoing” in the zeal to aggressively pursue individuals.
Stay tuned to Enforcement Edge as we see how DOJ’s priorities play out in the years that follow and how the defense bar’s concerns shake out as those priorities are put into practice.
© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.