# Justice Manual § 9-28.600: The Corporation's History of Misconduct

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/JM_S9-28.600

## Section

- **Citation:** Justice Manual § 9-28.600
- **Heading:** The Corporation's History of Misconduct
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** DOJ Justice Manual / Title 9: Criminal / 9-28.000 - Principles of Federal Prosecution Of Business Organizations / Justice Manual § 9-28.600

## Text

A. General Principle:
Prosecutors should consider a corporation’s history of misconduct, including prior domestic or international criminal, civil, and regulatory enforcement actions and resolutions, in determining whether to bring criminal charges and how best to resolve cases. Not all instances of a corporation’s prior misconduct are equally relevant or probative. In assessing a corporation’s history of misconduct, prosecutors should consider the following non-exhaustive list of factors:

The amount of time that has elapsed since the prior criminal, civil, or regulatory action or resolution concluded, the duration of the conduct underlying the prior resolution, and whether the conduct at issue in the current investigation occurred before, at the same time, or after the conduct underlying the prior resolution;
Whether a prior action or resolution was criminal, civil, or regulatory, and whether it involved U.S. federal or state authorities or foreign authorities;
The seriousness and pervasiveness of the conduct underlying the prior action or resolution, and the role, if any, of senior management in that conduct;
Whether the conduct underlying the prior action or resolution was similar in nature to the conduct currently under investigation (including similar conduct prosecuted under different statutes), involved the same personnel, or shared the same root cause as the conduct currently under investigation;
The form and terms of a prior resolution, including any factual admissions made by the corporation;
Whether, during the conduct that is the subject of the current investigation, the corporation was serving a term of probation or was subject to supervision, monitorship, or other obligation imposed by prior resolutions;
Whether the conduct at issue in the prior and current matters reflects broader weaknesses in the corporation’s compliance culture or practices;
Whether the prior action or resolution involved a corporate entity related to the corporation and the relationship between the related entity and the corpo
bation or was subject to supervision, monitorship, or other obligation imposed by prior resolutions;
Whether the conduct at issue in the prior and current matters reflects broader weaknesses in the corporation’s compliance culture or practices;
Whether the prior action or resolution involved a corporate entity related to the corporation and the relationship between the related entity and the corporation, including whether the entities have common management or share compliance resources;
Whether the corporation under investigation operates in a highly regulated industry, and, if so, whether the corporation’s history of regulatory actions is comparable to that of similarly situated companies in the industry; and
Whether the corporation voluntarily self-disclosed the conduct giving rise to the current matter or prior action(s) or resolution(s).

To aid in this effort, prosecutors should request that corporations prepare and produce a list and summary of all prior criminal resolutions within the last ten years, as well as any known pending investigations by U.S. (federal and state) and foreign government authorities. Attorneys for the government may tailor (or expand) this request to obtain the information that would be most relevant to the Department's analysis.

B. Comment:
A corporation, like a natural person, is expected to learn from its mistakes. A history of misconduct may be probative of a corporate culture that encouraged, or at least condoned, such misdeeds, regardless of any compliance programs. Such a history may also reflect an inadequate system of compliance policies and controls and/or a lack of commitment by senior management to implementing and sustaining an effective compliance program
n, is expected to learn from its mistakes. A history of misconduct may be probative of a corporate culture that encouraged, or at least condoned, such misdeeds, regardless of any compliance programs. Such a history may also reflect an inadequate system of compliance policies and controls and/or a lack of commitment by senior management to implementing and sustaining an effective compliance program. Criminal prosecution of a corporation may be particularly appropriate where the corporation previously had been subject to non-criminal guidance, warnings, or sanctions, or previous criminal charges, and it either had not taken adequate action to prevent future unlawful conduct or had continued to engage in the misconduct in spite of the warnings or enforcement actions taken against it. The corporate structure itself (
e.g.
, the creation or existence of subsidiaries or operating divisions) is not dispositive in this analysis, and enforcement actions taken against the corporation or any of its divisions, subsidiaries, and affiliates may be considered, if germane.
See
U.S.S.G. § 8C2.5(c), cmt. (n. 6).

Which factors are most relevant, and how to weigh these factors, will be a fact-specific determination in each case. In general, however, prosecutors weighing these factors should assign the greatest significance to recent U.S. criminal resolutions, and to conduct involving the same personnel or occurring under the same management as the conduct under investigation.  Greater significance should also be placed upon prior criminal resolutions that involved similar types of misconduct at either the same or a closely-related entity. Dated conduct, such as prior criminal resolutions entered into more than ten years before the conduct currently under investigation, and prior civil or regulatory resolutions that were finalized more than five years before the conduct under investigation, should generally be accorded less weight (with the weight growing the closer in time or in nature the conduct is to the present conduct)
entity. Dated conduct, such as prior criminal resolutions entered into more than ten years before the conduct currently under investigation, and prior civil or regulatory resolutions that were finalized more than five years before the conduct under investigation, should generally be accorded less weight (with the weight growing the closer in time or in nature the conduct is to the present conduct).  Prior resolutions involving remote entities within the corporate family (
e.g.
, entities that do not have common management or share compliance resources), as well as prior resolutions that did not result in a criminal disposition, also should be accorded less weight.  Such conduct may be generally less reflective of the corporation’s current compliance culture, program, and risk tolerance.  However, the analysis should remain fact-bound and individualized, even for older misconduct.

When evaluating charges or resolution terms for a corporation that previously entered into a non-prosecution or deferred prosecution agreement, prosecutors should consider and scrutinize whether a successive non-prosecution or deferred prosecution agreement would be appropriate under the circumstances. Multiple non-prosecution or deferred prosecution agreements are generally disfavored, especially where the matters at issue involve recent or similar types of misconduct; the same personnel, officers, or executives; or the same entities.  Before making a corporate resolution offer that would result in multiple non-prosecution or deferred prosecution agreements for a corporation (including its affiliated entities), Department prosecutors must secure the written approval of the responsible U.S. Attorney or Assistant Attorney General and provide notice to the Office of the Deputy Attorney General (ODAG) in the manner set forth in
Section 1-14.000
a corporate resolution offer that would result in multiple non-prosecution or deferred prosecution agreements for a corporation (including its affiliated entities), Department prosecutors must secure the written approval of the responsible U.S. Attorney or Assistant Attorney General and provide notice to the Office of the Deputy Attorney General (ODAG) in the manner set forth in
Section 1-14.000
.  Notice provided to ODAG pursuant to
Section 1-14.000
and this provision must be made with sufficient timeliness to enable careful review, but in no circumstance less than ten business days prior to issuing an offer to the corporation, absent extraordinary circumstances.

While multiple deferred or non-prosecution agreements are generally disfavored, prosecutors should nonetheless incentivize and reward corporations that voluntarily self-disclose misconduct, even where such corporations have entered into prior resolutions.  A timely voluntary self-disclosure not only reveals misconduct at a corporation; it can also reflect that a corporation is appropriately working to detect misconduct and taking seriously its responsibility to instill and act upon a culture of compliance. In keeping with
Section 9-28.900
, when weighing a corporation’s history of misconduct, Department prosecutors must appropriately credit voluntary and timely self-disclosures of current and prior conduct.

From time to time, when conducting an assessment of a corporation’s prior misconduct, prosecutors will confront situations where the prior misconduct occurred at an entity (the “acquired entity”) that was subsequently acquired by the corporation now subject to the current investigation (the “acquiror”). In those situations, prosecutors should consider whether and to what extent they will assign weight to the misconduct involving the acquired entity
a corporation’s prior misconduct, prosecutors will confront situations where the prior misconduct occurred at an entity (the “acquired entity”) that was subsequently acquired by the corporation now subject to the current investigation (the “acquiror”). In those situations, prosecutors should consider whether and to what extent they will assign weight to the misconduct involving the acquired entity. As a general matter, for the purposes of determining an acquiror’s prior misconduct, prosecutors should assign minimal weight to pre-acquisition misconduct that occurred at an acquired entity, where prosecutors determine that the acquiror has effectively integrated the acquired entity into a well-designed compliance program and remediated both the prior misconduct and its root causes.

In situations where an acquiror qualifies for a presumption of declination pursuant to Section 9-28.900(A)(3) (
i.e.
, the acquiror voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated misconduct uncovered while conducting due diligence related to the acquisition), the prosecution team should assign
zero
weight to the acquired entity’s misconduct for the purposes of determining the acquiror’s history of misconduct under Section 9-28.600(A).
[1]

[updated May 2024]
[1]
The prosecution team’s decision to apply a presumption of declination pursuant to Section 9-28.900(A)(3)(a)—and any corresponding decision to apply zero weight to the acquiror’s history of misconduct—should not be construed as limiting any civil and administrative authorities for reviewing the legality of a corporate transaction or rendering judgment on the legality of the transaction itself.
See
Section 9-28.900(B).

## Nearby sections

- [Justice Manual § 9-28.010 Foundational Principles of Corporate Prosecution](https://www.frixlaw.com/law-library/statutes/JM_S9-28.010.md)
- [Justice Manual § 9-28.100 Duties of Federal Prosecutors and Duties of Corporate Leaders](https://www.frixlaw.com/law-library/statutes/JM_S9-28.100.md)
- [Justice Manual § 9-28.200 General Considerations of Corporate Liability](https://www.frixlaw.com/law-library/statutes/JM_S9-28.200.md)
- [Justice Manual § 9-28.210 Focus on Individual Wrongdoers](https://www.frixlaw.com/law-library/statutes/JM_S9-28.210.md)
- [Justice Manual § 9-28.300 Factors to Be Considered](https://www.frixlaw.com/law-library/statutes/JM_S9-28.300.md)
- [Justice Manual § 9-28.400 Special Policy Concerns](https://www.frixlaw.com/law-library/statutes/JM_S9-28.400.md)
- [Justice Manual § 9-28.500 Pervasiveness of Wrongdoing Within the Corporation](https://www.frixlaw.com/law-library/statutes/JM_S9-28.500.md)
- [Justice Manual § 9-28.600 The Corporation's History of Misconduct](https://www.frixlaw.com/law-library/statutes/JM_S9-28.600.md)
- [Justice Manual § 9-28.700 The Value of Cooperation](https://www.frixlaw.com/law-library/statutes/JM_S9-28.700.md)
- [Justice Manual § 9-28.710 Attorney-Client and Work Product Protections](https://www.frixlaw.com/law-library/statutes/JM_S9-28.710.md)
- [Justice Manual § 9-28.720 Cooperation: Disclosing the Relevant Facts](https://www.frixlaw.com/law-library/statutes/JM_S9-28.720.md)
- [Justice Manual § 9-28.750 Oversight Concerning Demands for Waivers of Attorney-Client Privilege or Work Product Protection By Corporations Contrary to This Policy](https://www.frixlaw.com/law-library/statutes/JM_S9-28.750.md)
- [Justice Manual § 9-28.800 Corporate Compliance Programs](https://www.frixlaw.com/law-library/statutes/JM_S9-28.800.md)
- [Justice Manual § 9-28.900 Voluntary Self-Disclosures](https://www.frixlaw.com/law-library/statutes/JM_S9-28.900.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/JM_S9-28.600. Check the current official text before relying on it. Not legal advice.