DOJ’s New Evaluation of Corporate Compliance Programs – A Good Time to Focus on the Essence of Compliance
By John H. Fisher II
May 20, 2019
The Criminal Division of the United States Department of Justice (DOJ) recently released an update (April, 2019) to its Evaluation of Corporate Compliance Programs (Evaluation). The Evaluation was first introduced in 2017 to provide guidance for prosecutors to consider when conducting investigations, determining whether to bring charges, and negotiating plea and other agreements. The Evaluation serves as a sort of cookbook for judging the effectiveness of a corporate compliance program. In fact, that is just what the DOJ intends. The document provides guidance to DOJ agents who are making prosecution related decisions. It makes sense that companies when designing and evaluating their compliance programs look to the guidance the government puts out to its agents.
The DOJ made various revisions to the Evaluation, most of which are intended to harmonize the Evaluation with other available compliance guidance as well as the legal standards that form the basis for compliance. Perhaps more important than any specific revision is the emphasis the DOJ puts on the effectiveness of a corporate compliance program and the enforcement of compliance standards against individual wrongdoers. Individual wrongdoing has been increasingly emphasized by the DOJ in recent years, highlighted by the infamous “Yates Memorandum” which moved the emphasis on individual wrongdoing to a new level.
Anyone can look at the Evaluation and summarize the various components of what the DOJ considers an effective compliance program. Rather than just summarizing its terms, I thought it more appropriate to use the various areas of coverage of the Evaluation as a framework for discussing the compliance process to help provide a big picture view of a compliance program that is working in an effective manner. I want to talk about the areas the DOJ identifies as being important to an effective compliance program rather than just regurgitating what the Evaluation says.
I will be reviewing the main areas covered by the Evaluation in a series of blog articles that roughly follow guidance from the DOJ reflected in the Evaluation. I hope to go much deeper to heighten understanding of how the various components of a compliance program fit together to create a living and breathing process that continually operates to identify and address organizational risk.
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