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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