DOJ Issues Guidance on Compliance Programs
Business Law Alert 02/20/17 Edwin J. Broecker
Late last week the Department of Justice (DOJ) Fraud Section posted on its public website a report entitled “Evaluation of Corporate Compliance Programs” with little fanfare, not even a press release. The Guidance seems to be the culmination of the efforts of Hui Chen, the DOJ expert of compliance programs, who joined the DOJ in late-2015.
The Guidance seeks to provide some level of transparency into what the DOJ's Fraud Section will consider in reviewing information from companies involved in DOJ investigations. The Guidance contains 46 questions broken down into 11 topics that prosecutors will typically ask about a compliance program. It is not intended to be a checklist or a “one-size fits all” document, even though there are checkboxes next to the questions.
The 11 topics of Guidance are:
- Analysis and Remediation of Underlying Conduct
- Senior and Middle Management
- Autonomy and Resources
- Policies and Procedures
- Risk Assessment
- Training and Communications
- Confidential Reporting and Investigation
- Incentives and Disciplinary Measures
- Continuous Improvement, Periodic Testing and Review
- Third Party Management
- Mergers & Acquisitions
Many of these topics are already included in existing materials. The Guidance specifically refers to following resources: the United States Attorney’s Manual, the United States Federal Sentencing Guidelines, A Resource Guide to the U.S. Foreign Corrupt Practices Act, corporate resolution agreements, and published best practices, including Good Practice Guidance on Internal Controls, Ethics, and Compliance adopted by the Organization for Economic Cooperation and Development (OECD) and the Anti-Corruption Ethics and Compliance Handbook for Business published by the OECD, the United Nations Office on Drugs and Crime, and the World Bank.
While not groundbreaking, the Guidance provides insight into some of the priorities of the DOJ when it reviews the adequacy of a compliance program. This Guidance should serve as one additional resource for compliance professionals or in-house counsel when designing, implementing and updating their companies' compliance programs and for those companies responding to the DOJ as part of an investigation.
For questions, please contact Edwin J. Broecker at [email protected]/(317) 399-2828 or your Quarles & Brady attorney.