The DOJ issued New April 2019 Guidance (“Guidance”, or “2019 Guidance”) detailing how prosecutors will evaluate the effectiveness of corporate programs to prevent fraud and other misconduct, a key consideration in determining the penalties imposed against companies. This is an update from the On February 8, 2017, the DOJ published Guidance entitled, “Evaluation of Corporate Compliance Programs”.
The 2019 Guidance contains 12 high-level topics (below) that are grouped to track the Three Core Questions about compliance program effectiveness contained in Section 9-28.800 of the Justice Manual and candidly are the key questions the board of directors should be asking. After all it’s expected the the organization’s “governing authority shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight” of it (See U.S.S.G. § 8B2.1(b)(2)(A)-(C)).
Three Core Questions
The High-level Topics
Under each of the above topics, the 2019 Guidance sets forth multiple sample questions that prosecutors are likely to ask during an investigation. A few examples are:
Some Other Points of Focus
The 2019 Guidance seeks to understand how the organization approaches compliance and then what worked and what didn’t. So, one might consider reading both the old and new Guidance to understand how the evaluation of an organization’s compliance programs has changed.
If you are going to have your organization’s compliance program evaluated and you should!