On April 30, 2019, DOJ’s Criminal Division released updated guidance for federal prosecutors to assist in the evaluation of corporate compliance programs, updating and expanding upon similar guidance issued in February 2017. The updated guidance provides an expanded discussion of the hallmarks of well-designed compliance programs in relation to risk assessments, policies and procedures, training, confidential reporting and investigation processes, as well as the management of third-party relationships. Additionally, the document provides white-collar prosecutors with guidance on how to evaluate the implementation of corporate compliance programs and measure whether a company’s compliance program is in fact operating effectively.
In public remarks coinciding with the release, Assistant Attorney General Brian Benczkowski, emphasized that the updated guidance is not intended to serve as a “checklist [or] a formula” for prosecutors, and framed it as part of broader efforts by DOJ to increase transparency and consistency. AAG Benczkowski discussed the potential benefits to having robust and effectively implemented compliance programs vis-à-vis DOJ’s charging decisions and negotiation of corporate resolutions, including with respect to penalties and the necessity of corporate monitorship. Relatedly, AAG Benczkowski also noted ongoing training within DOJ to ensure that prosecutors are equipped to undertake rigorous and informed analysis of corporate compliance programs, both at the time of alleged violations as well as at the time of resolution.