US progressive groups ask DOJ to reverse new M&A safe harbor policy

By Chris Prentice

NEW YORK (Reuters) – More than a dozen groups are pressing the U.S. Justice Department to retreat from a new policy they say gives a “free pass” to corporate wrongdoers, a sign of mounting criticism among progressives of enforcement under President Joe Biden.

Demand Progress, Public Citizen and 12 other progressive non-profit organizations and lobbying groups want Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco to reverse the policy designed to coax companies to disclose misconduct they uncover during mergers and acquisitions, according to a letter sent on Friday.

The “newly announced policy will incentivize more concentration of corporate power through strategically-timed mergers or acquisitions sought in order to wipe the slate clean for lawbreakers,” the groups said in the letter.

Monaco said this month that under the new safe harbor policy that U.S. prosecutors will not target firms that report misconduct they find within six months of acquiring a new company. Senator Elizabeth Warren has also criticized the policy.

Under Democratic leadership, the Justice Department has changed its approach to policing white-collar crime, targeting both stiffer repercussions for executives and repeat offenders as well as encouraging more self-disclosures and compliance from companies – an approach Monaco has dubbed “carrots and sticks”.

The approach has not yet boosted the number of enforcement cases, disappointing some.

“Despite promises to ramp up enforcement, the Department of Justice under President Joe Biden prosecuted only 99 corporate offenders in 2022,” Public Citizen said in a Monday report on the latest data available.

That puts the Biden administration’s second year of corporate enforcement on par with the second year of the Trump administration’s – the fifth-lowest corporate prosecutions on record. The previous year, 2021, saw a record low, the report said.

The new safe harbor program also “directly undermines” the Biden Administration’s anti-monopoly efforts, they said. The Justice Department and Federal Trade Commission have mounted an unprecedented number of legal challenges to mergers since Biden took office.

To be sure, such data are a lagging indicator of enforcement activity and the agency has said the pandemic slowed some work. A recently-departed DOJ official told Reuters in August that more big corporate settlements were coming.

(Reporting by Chris Prentice; Editing by Rod Nickel)