Ropes & Gray Discusses DOJ’s New Guidance on Inability-to-Pay Claims

On October 8, 2019, the Criminal Division of the U.S. Department of Justice (“DOJ” or the “Government”) issued new guidance for federal prosecutors to follow when corporations claim they are unable to pay a criminal fine or monetary penalty.  For years, the DOJ’s Civil Division has employed an “inability to pay” process for resolving civil claims under the False Claims Act.  Now, the Criminal Division has delineated its own process in a memorandum from Assistant Attorney General Brian Benczkowski titled, “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty” (the “Memorandum”).[1]  The DOJ’s new … Read more