In a speech to the New York City Bar on May 9, Deputy Attorney General Rod Rosenstein announced a new U.S. Department of Justice (DOJ) policy that encourages coordination within DOJ and between law enforcement agencies in parallel and/or joint proceedings in order to avoid duplicative penalties. The new policy aims to reduce the practice of “piling on,” or imposing multiple penalties for the same crime, which can lead to unfair settlements and uncertainty for businesses involved in investigations under the authority of multiple regulatory agencies.

The policy:

1. Reinforces that DOJ attorneys should not use criminal enforcement authority as a threat to incentivize larger settlements.
2. Directs DOJ attorneys to coordinate with one another in resolving cases with multiple department components to avoid duplicative and inequitable penalties.
3. Similarly, directs DOJ to coordinate with other law enforcement agencies to avoid “piling on.”
4. Directs DOJ to consider all relevant factors in coordinating multiple-component cases, taking into account, for example, the egregiousness of misconduct, statutory mandates, timeliness, and the company’s cooperation with the investigation.
5. Stipulates that multiple penalties are appropriate in some circumstances, such as when penalties are designed for victim restitution.

In his speech, Rosenstein also highlighted several other recent DOJ policy changes, including ending third-party settlement payments to entities that are not harmed by a defendant’s conduct and prohibiting reliance on agency guidance documents.