From the top
The announcement comes on the heels of President Biden’s State of the Union address, in which he called for a renewed focus on preventing and prosecuting pandemic-related fraud. “In my administration,” President Biden said, “the watchdogs are back.” The president also vowed to appoint a chief prosecutor to lead specialized teams responsible for investigating fraud in pandemic-relief programs such as the Paycheck Protection Program and the Provider Relief Fund. President Biden has previously laid out a national anti-corruption strategy and linked his administration’s efforts to combat corruption with the country’s national security. Please see our analysis here.
Foremost among the initiatives announced last week is a plan to hire an additional 120 attorneys1 and 900 FBI agents to pursue pandemic-related fraudsters, at a combined budget of over $350 million.
Cracking down on individual malfeasors
The Attorney General emphasized that prosecuting individuals would be the Department’s “first priority” for three reasons:
- Penalties imposed on individual corporate wrongdoers are felt by those wrongdoers, rather than by innocent shareholders.
- Holding corporate executives individually accountable is the best deterrent to corporate crime and helps prevent the formation of a toxic corporate culture.
- Prosecuting culpable individuals is essential to maintain the public’s trust and build confidence in the rule of law.
AG Garland acknowledged that identifying and prosecuting individual malfeasors is often more difficult and resource intensive than accepting hefty fines from companies. He nonetheless encouraged prosecutors to charge ahead, noting that U.S. Attorneys’ Offices charged 5,521 individuals nationwide with white collar crimes in 2021– a 10% increase over the previous year.
What to expect
The attorney general stressed the importance of DOJ’s 2021 restoration of the requirement that companies provide information about all individuals involved in corporate misconduct in order to be eligible for cooperation credit, regardless of their position, status, seniority, or the level of their involvement. Please see our analysis of Deputy Attorney General Lisa Monaco’s announcement of this new policy here. That change marked a departure from the previous policy under prior administrations that only required disclosure of individuals “substantially involved” in the misconduct.
Further, AG Garland unveiled plans to double down on using—and sharing—big data to identify payment patterns indicative of fraud, including embedding a specialized group of FBI agents within the Criminal Division’s Fraud Section to replicate the successful use of data analytics in investigations conducted by the Health Care Fraud unit.
The Department’s efforts to combat white collar crime also extend across agencies. Garland noted that the DOJ is working “more closely than ever” with federal agencies’ Inspectors General to identify fraud, as well as partnering with the Securities Exchange Commission, the Centers for Medicare & Medicaid Services, the Internal Revenue Service, and state law enforcement agencies to investigate and prosecute cases.
A focus on victims
Assistant Attorney General Kenneth Polite Jr., spoke after Garland and echoed these priorities. He also called on prosecutors to keep victims harmed by white collar crimes top of mind: “Do not forget the people.” Toward this end, AAG Polite announced a number of additional Criminal Division initiatives including:
- Adding a Victim Coordinator to the Front Office to handle crime victim issues and further promote consistency across departments;
- Launching an assessment of the tools and resources currently offered to assist victims in reporting financial crimes;
- Requiring companies to more fully address victim issues as part of their presentations on charging decisions to prosecutors; and
- Bifurcating corporate plea hearings from sentencing hearings, where appropriate and necessary, to allow time for any victims to come forward.
White collar prosecutions last reached an all-time high in 2011 as the country was emerging from the great recession. Thus, it may be unsurprising that, a decade later, a focus on white collar crime returns as the country climbs out of the COVID-19 pandemic. With more than $4 trillion in aid coursing through the economy as a result of COVID-19 relief efforts, the focus on detecting related fraud is unsurprising. Nevertheless, the sheer volume of resources devoted to these efforts signals the seriousness with which the Biden administration is taking both pandemic-related fraud and corporate misconduct more generally.
With this promised surge in white collar prosecutions on the horizon, companies should review their compliance programs to ensure rigorous safeguards are in place to deter, detect, and remediate any misconduct. Companies would also be wise to consider whether a voluntary disclosure of any such misconduct to DOJ or other federal agencies is appropriate.
Authored by Peter Spivack, Stephanie Yonekura, Matthew Sullivan, and Melissa Giangrande.