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DOJ's Update to Its Evaluation of Corporate Compliance Programs Provides Additional Detail, but Not Necessarily Additional Clarity

Firm Memoranda
On Tuesday, the Department of Justice's Criminal Division released an update (the "Update") to the "Evaluation of Corporate Compliance Programs" first released by the Fraud Section in 2017. That document provided a compendium of key questions for use by both prosecutors-to assist in their consideration and evaluation of companies' compliance practices-as well as companies and their inhouse compliance professionals as food for thought in confronting their own compliance challenges. According to DOJ, this week's Update "seeks to better harmonize the [Fraud Section] guidance with other Department guidance and standards while providing additional context to the multifactor analysis of a company's compliance program." Although the Update provides significant additional detail in a number of areas, it does not provide concrete guidance on how prosecutors should rank the relevant factors or apply them in evaluating a given compliance program which might satisfy some criteria, but fall short on others. As a result, executives and practitioners may be left to guess at how prosecutors ultimately will come out when they evaluate the company's or client's compliance program. Nevertheless, what is clear is that DOJ is absolutely committed to ensuring that companies implement strong compliance programs that both deter and correct allegations of misconduct. Companies and clients that fail to do so should expect to face thorough and exacting investigations from prosecutors trained better than ever in compliance issues.
 
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If you have any questions about the issues addressed in this memorandum, or if you would like a copy of any of the materials mentioned in it, please do not hesitate to reach out to:
 
Co-Chair, Investigations, Government Enforcement and White Collar Criminal Defense Practice and Crisis Law & Strategy Practice
Phone: +1 (202) 538-8333
 
Associate
Phone: +1 (212) 849-7177