On April 30, 2019, to provide greater transparency into prosecution decisions, the U.S. Department of Justice (DOJ) published “The Evaluation of Corporate Compliance Programs,” an update to its February 2017 guidance on the same topic. The new guidance complements the principles previously described by DOJ’s Fraud Section that prosecutors should consider when “conducting an investigation of a corporation, determining whether to bring charges, and negotiating plea or other agreements.” According to the Justice Manual, those factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.” The new guidance attempts to provide more detail as to how DOJ will evaluate corporate compliance programs in this context while better harmonizing the Criminal Division’s guidance with the rest of the department.

The guidance is organized in a comprehensive fashion under three basic, overarching questions that compliance departments should consider:

  1. Is the corporation’s compliance program well designed?
  2. Is the program being applied earnestly and in good faith? In other words, is the program being implemented effectively?
  3. Does the corporation’s compliance program work in practice?

Click here to read the full GT Alert.