On June 1, 2020, the US Department of Justice (DOJ) Criminal Division, with little fanfare, issued updated guidance on the Evaluation of Corporate Compliance Programs (2020 Guidance). The document, which was released without any accompanying public announcement or explanation, updates an April 30, 2019 version of the document (2019 Guidance), as discussed in our May 9, 2019 Advisory. The 2019 Guidance updated original guidance published by the Division’s Fraud Section on February 8, 2017 (2017 Guidance), as discussed in our 2017 FCPA Mid-Year Review.

The DOJ’s evaluation of the effectiveness of a company’s compliance program continues to be a relevant factor to charging decisions under the Principles of Federal Prosecution of Business Organizations in the Justice Manual, as well as to an organization’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.

While the 2019 Guidance made more substantive changes to the original 2017 Guidance, including by reorganizing the document and broadening its application (following the 2019 update, the guidance applies to the DOJ Criminal Division more broadly), the latest updates are more discrete. In some ways, the 2020 updates bring the 2019 Guidance more fully in line with other available guidance and DOJ pronouncements, including most notably the 2012 DOJ/SEC FCPA Resource Guide (FCPA Resource Guide).

The most significant updates in the 2020 Guidance are: (i) changes emphasizing the need for a dynamic compliance program and reflecting heightened expectations for the use of data analytics and testing; and (ii) clarifications concerning the DOJ’s expectations for a risk-based approach to compliance.

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