August 11, 2020

Volume X, Number 224

August 10, 2020

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DOJ Eyes More Dynamic Corporate Compliance Programs in Updates to Department Manual

Last week, the Department of Justice (“DOJ”) updated its Manual on Evaluation of Corporate Compliance Programs (“June 2020 Guidance”), which is intended to aid prosecutors in making corporate charging decisions.  Initially issued in 2017, and last updated in April 2019, the Guidance provides prosecutors a number of questions to consider in evaluating the design, implementation, and effectiveness of corporate compliance programs.  This assessment is central for purposes of determining the appropriate (1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution. 

A review of the June 2020 Guidance reveals that future criminal investigations will give heightened scrutiny to whether corporate  compliance programs (1) are adequately resourced, (2) have formalized processes in place to continually evaluate their effectiveness, (3) have effectively incorporated the use of data analytics, and (4) adequately address cross-border implications.

  1. Adequately Resourced: Prior to the recent updates, DOJ’s guidance sought to determine whether compliance programs were “implemented effectively.”  Under its June 2020 Guidance, however, DOJ seeks compliance programs that are “adequately resourced and empowered to function effectively.”

  2. Continual Evaluation: The June 2020 Guidance supplements its Risk Assessment section to incorporate “Lessons Learned,” which seeks to determine whether a company has a process in place for tracking and incorporating lessons learned (either by that company, or by others in the same industry) into its risk-based compliance program.  

  3. Incorporate Use of Data and Analytics: The June 2020 Guidance adds a section concerning Data Resources and Access, which seeks to assess the use of data to monitor and test the effectiveness of compliance programs.    

  4. Cross-Border Implications: The June 2020 Guidance clarifaies DOJ’s intention to give increased scrutiny tocorporate assertions of impediments from foreign regulation, including that compliance structures or decisions are guided by foreign law.   

The June 2020 Guidance also serve as a valuable teaching tool for corporations seeking to update their compliance program. 

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 160

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As a shareholder in the Government Investigations practice, Brian Rafferty leverages a distinguished background serving as Chief of the Criminal Division of the United States Attorney’s Office for the Southern District of Georgia. In his more than ten years of experience as a federal prosecutor, Brian oversaw and managed some of the most high-profile and complex investigations in the Southern District of Georgia. Before his work as a federal prosecutor, Brian was a partner at white collar criminal litigation boutique in New York, where he represented individuals in government...

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Andrew T. Fox Phoenix Polsinelli Government Investigations Labor and Employment Commercial Litigation Litigation and Dispute Resolution
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As a member of Polsinelli’s Government Investigations practice, Andrew assists clients in all aspects of white collar criminal defense and internal corporate investigations. Working to understand each client’s unique situation, he helps guide clients through government inquiries and provides counsel that aligns to their business strategies. Andrew has experience drafting briefs, memoranda and responding to discovery requests.

Prior to joining Polsinelli, Andrew served as a law clerk to The Honorable Judge Douglas L. Rayes on the United States District Court for the District of Arizona.

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