Justice Department tells bankers to confess their misdeeds to cut better enforcement deals

U.S. prosecutor Marshall Miller (C), William Nardini (R) and Kristin Mace attend a news conference in Rome February 11, 2014.

Tony Gentile | Reuters

Banks and other corporations that proactively report possible employee crimes to the government instead of waiting to be discovered will get more lenient terms, according to a Justice Department official.

The DOJ recently overhauled its approach to corporate criminal enforcement to incentivize companies to root out and disclose their misdeeds, Marshall Miller, a principal associate deputy attorney general, said Tuesday at a banking conference in Maryland.

“When misconduct occurs, we want companies to step up,” Miller told the bank attorneys and compliance managers in attendance. “When companies do, they can expect to fare better in a clear and predictable way.”

Banks, at the nexus of trillions of dollars of flows around the world daily, have a relatively high burden for enforcing anti-money laundering and other legal and regulatory requirements.

But they have a lengthy track record of failures, often due to unscrupulous employees or bad practices.

The industry has paid more than $200 billion in fines since the 2008 financial crisis, mostly tied to its role in the mortgage meltdown, according to a 2018 tally from KBW. Traders and bankers have also been blamed for manipulating benchmark rates, currencies and precious metal markets, stealing billions of dollars from developing nations, and laundering money for drug lords and dictators.

The carrot that Justice officials are dangling before the corporate world includes a promise that companies that promptly self-report misconduct won’t be forced to enter a guilty plea, “absent aggravating factors,” Miller said. They will also avoid being assigned in-house watchdogs called monitors if they fully cooperate and bootstrap internal compliance programs, he said.

Remember Arthur Andersen?

The first incentive carries extra weight for financial firms because guilty pleas can cause catastrophic issues for the highly regulated entities; they could lose business licenses or the ability to manage client funds unless they’ve negotiated regulatory carveouts.

“The message every corporation should hear is that the best way to avoid a guilty plea — for some companies, the only way to do so — is by immediately self-reporting and cooperating when misconduct is discovered,” Miller said.

Officials have generally sought to avoid inadvertently triggering the collapse of companies with enforcement actions after the 2002 indictment of accounting firm Arthur Andersen led to 28,000 job losses.

But that has meant that over the past decade, banks and other companies typically entered deferred prosecution agreements or other arrangements, coupled with fines, when misdeeds are found. For instance, JPMorgan Chase entered DPAs for its role in the Bernie Madoff pyramid scheme and a precious metals trading scandal, among other mishaps.

Uber compliant

Even in cases where problems aren’t immediately found, the Justice Department gives credit for managers who volunteer information to the authorities, Miller said. He cited the recent conviction of Uber‘s ex-chief security officer for obstruction of justice as an example of their current methods.

“When Uber’s new CEO came on board and learned of the CSO’s conduct, the company made the decision to self-disclose all the facts regarding the cyber incident and the CSO’s obstructive conduct to the government,” he said. The move resulted in a deferred prosecution agreement.

Companies will also be looked at favorably for creating compensation programs that allow for the clawback of bonuses, he said.

The department-wide shift in its approach comes after a year-long review of its processes, Miller said.

Crypto hint

Miller also rattled off a list of recent cryptocurrency-related enforcement actions and hinted that the agency was looking at potential manipulation of digital asset markets. The recent collapse of FTX has led to questions about whether founder Sam Bankman-Fried will face criminal charges.

“The department is closely tracking the extreme volatility in the digital assets market over the past year,” he said, adding a well-known quote attributed to Berkshire Hathaway‘s Warren Buffett about discovering misdeeds or foolish risk-taking “when the tide goes out.”

“For now, all I’ll say is those who have been swimming naked have a lot to be concerned about, because the department is taking note,” Miller said.

—With reporting from CNBC’s Dan Mangan