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Biden Administration Corporate Enforcement Policies More Symbolism than Effective Reform
A recent address by Deputy Attorney General Lisa Monaco, along with recent pronouncements by the leadership of the Securities and Exchange Commission (SEC), confirm that the Biden Administration wants to portend a return to tougher corporate enforcement. By undoing some of the higher profile policy changes of the prior administration that many perceived as business-friendly, the current administration has served notice on the business and financial community of a return to practices characteristic of a more aggressive enforcement regime.
The Administration's signaling a change in tone was widely expected. If that change in tone means, more substantively, that the Justice Department, SEC, and other federal law enforcement agencies intend to shift their priorities and reallocate resources toward effectively investigating and prosecuting more complex business cases, the results should be revealed in the enforcement numbers and the headlines over the coming months and years. Time will tell.
The key policy changes announced thus far, however — including a return to the Yates Memo policy of requiring cooperating corporations to provide full information about all involved in wrongful conduct, no matter what their culpability; a reversal of any presumption against monitorships; and a renewed effort to seek admissions of wrongdoing in SEC enforcement settlements — appear to be more symbolism than serious efforts at effective reform. Substantively, many will see these changes as a reversion to prior policies that did not work particularly well in practice and rightly were the subject of criticism.
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