The US Department of Justice (DOJ) Criminal Division announced the publication of updated Guidance on Evaluating Corporate Compliance Programs (2019 Guidance) on April 30, 2019. As discussed in our 2017 FCPA Mid-Year Review, the original guidance, published on February 8, 2017 (2017 Guidance), essentially set forth a list of 11 topics and over 100 detailed questions that the Fraud Section of the DOJ’s Criminal Division stated it would consider when evaluating the effectiveness of a company’s compliance program in the context of corporate criminal investigations. The DOJ’s evaluation of the effectiveness of a company’s compliance program has long been listed as a factor relevant to charging decisions under the Principles of Federal Prosecution of Business Organizations in the US Attorney’s Manual (now known as the Justice Manual), as well as to a company’s eligibility to receive a reduction in criminal fines calculated under the US Sentencing Guidelines (USSG); it is also important to the DOJ’s assessment of whether a monitor is warranted.
In substance, the principles set forth in the 2019 Guidance do not significantly depart from prior available compliance program guidance, but the 2019 Guidance reorganizes and expands in some respects upon the DOJ’s 2017 Guidance. Importantly, while the 2017 Guidance applied only to the Criminal Division’s Fraud Section, in which the FCPA Unit is housed, the 2019 Guidance appears to apply to the Criminal Division more broadly. In this and other respects, the 2019 Guidance appears to signal that the DOJ’s assessment of corporate compliance programs will take on added importance in the resolution of a wider array of corporate criminal matters moving forward.
For more information, please see our advisory.