May 22, 2019
Government Investigations & White Collar Defense Alert
Author(s): Isabelle De Smedt, Mark Knights, Michael Strauss
Corporate compliance regimes—or the lack thereof—directly impact prosecutors’ charging decisions, the monetary penalties sought and the types of corporate criminal resolutions available to organizations. This alert provides corporate counsel with the key takeaways from DOJ’s Evaluation of Corporate Compliance Programs guidance document.
The U.S. Department of Justice Criminal Division recently released updated guidance to aid prosecutors in evaluating corporate compliance programs as part of their investigations into corporate misconduct. The import of this guidance cannot be overstated. Corporate compliance regimes—or the lack thereof—directly impact prosecutors’ charging decisions, the monetary penalties sought, and the types of corporate criminal resolutions available to organizations. This alert provides corporate counsel with the key takeaways from DOJ’s Evaluation of Corporate Compliance Programs guidance document.
Although there are best practices in compliance, there is no one-size-fits-all compliance program. And DOJ recognizes that. With that recognition in mind, DOJ’s new guidance reinforces and adds substance to the three overarching questions that the Justice Manual directs prosecutors to use in their assessment of compliance program efficacy. Those questions are: (1) Is the corporation’s compliance program well designed?; (2) Is the program being applied in good faith?; and (3) Does the corporation’s compliance program work in practice?
To help prosecutors answer these questions, the guidance identifies various topics and questions relative to each. Here are the main points to note.
Bottom line: With this new guidance and the earlier roll-out of an amended FCPA Corporate Enforcement Policy, DOJ is not just telling prosecutors what they should be looking for. It’s also telling businesses what it expects from them on the compliance front. And what DOJ expects is not just a compliance program that looks good on paper, but a compliance program that works in practice, is tailored to meet the risks the company faces, and has the flexibility to evolve along with those risks.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.