In the year and a half that has transpired since the DOJ’s Fraud Section retained a
compliance consultant to assist prosecutors’ evaluation of compliance programs,
compliance officers, general counsels and white-collar defense lawyers have called
for more visibility into what the Fraud Section’s compliance consultant portends for
companies ensnared in DOJ investigations. The Fraud Section appears to have
responded.
Last week, the Fraud Section posted on its public website a set of sample topics and questions
titled "Evaluation of Corporate Compliance Programs" (available here).
The document contains 11 sections, specifically:
· Analysis and Remediation of Underlying Conduct
· Senior and Middle Management
· Autonomy and Resources
· Policies and Procedures
· Risk Assessment
· Training and Communications
· Confidential Reporting and Investigation
· Incentives and Disciplinary Measures
· Continuous Improvement, Periodic Testing and Review
· Third Party Management
· Mergers & Acquisitions
"Evaluation of Corporate Compliance Programs" draws from existing guidance, including the
United States Federal Sentencing Guidelines, the United States Attorney’s Manual and A
Resource Guide to the U.S. Foreign Corrupt Practices Act, and published best practices,
including those in the Anti-Corruption Ethics and Compliance Handbook for Business published
by the Organization for Economic Cooperation and Development, the United Nations Office on
Drugs and Crime, and the World Bank.
While most of its contents will not strike those well-versed in compliance as particularly
ground-breaking, the document does make more explicit and transparent the factors that the
Fraud Section considers, and the questions it frequently asks, in assessing compliance
programs. Indeed,the detailed nature of some of the sample questions — especially as they
concern compliance personnel’s experience, resources and authority — reflects how the Fraud
Section’s compliance consultant has shaped the framework.
The Fraud Section’s "Evaluation of Corporate Compliance Programs" can thus serve as an
additional resource, not only for companies and their counsel when preparing
compliance-related presentations
or written submissions to the Fraud Section, but also for in-house attorneys and compliance
officers when designing, implementing and updating their companies' compliance programs.
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