DOJ Policy Shift on Corporate Criminal Liability and DPAs: What Changed and What It Means

Key Takeaways

• The September 2024 DOJ memorandum rescinds the prior "Hogan Lovells" guidance and restores prosecutors' full discretion to seek guilty pleas from corporations, even those with robust compliance programs, when individual culpability is diffuse or senior management was willfully blind.
• Deferred Prosecution Agreements (DPAs) now require an express admission of criminal conduct, a term of at least two years, and independent compliance monitors for any company with more than 500 employees, unless the investigation cost demonstrably exceeds the penalty.
• Prosecutors must now weigh nine enumerated factors—including the company's history of acquisitions, the pervasiveness of the misconduct, and whether the corporation self-reported within 60 days of learning of the violation—before offering any DPA.
• The new policy eliminates the "presumption of a DPA" for companies that voluntarily disclose, meaning even full cooperation no longer guarantees a non-prosecution agreement; the burden now falls on defense counsel to prove a DPA serves the "substantial federal interest."