U.S. Department of Justice announces major changes to corporate compliance program evaluation criteria
During speeches at the 2023 White Collar Conference of the American Bar Association (ABA) on 2 and 3 March 2023, Deputy Attorney General (DAG) Lisa Monaco, Assistant Attorney General (AAG) Kenneth A. Polite Jr., and other US government officials announced significant changes to the U.S. Department of Justice’s (DOJ) Evaluation of Corporate Compliance Programs (ECCP)and emphasized the importance of corporate compliance programs.
First, DAG Monaco and AAG Polite announced the DOJ’s first-ever Pilot Program on Compensation Incentives and Clawbacks, mandating that companies “develop compliance-promoting criteria within its compensation and bonus systems.” The new pilot program, along with announcements regarding additional resource commitments to corporate criminal enforcement, is part of the DOJ’s broader initiative to “invigorate” corporate criminal enforcement and empower companies to invest “in compliance, in culture, and in good corporate citizenship.”
Second, prosecutors should now consider a company’s policies and procedures regarding messaging applications (including third-party encrypted messaging applications), ephemeral messages, other communications platforms, and the use of personal devices when evaluating a company’s compliance policies relating to identifying, reporting, investigating, and remediating potential misconduct. Companies that fail to adopt policies to preserve and produce such messages may jeopardize their ability to obtain a favorable outcome.
Thirdly, according to the speakers, the DOJ has repeatedly emphasized that it now considers corporate criminal enforcement to be a matter of national security, even stating that sanctions enforcement “is the new FCPA.” The speakers emphasized that the DOJ has allocated a “surge of resources” to the Criminal and National Security divisions to combat sanctions evasion and export controls as well as expects corporate compliance programs to address these issues specifically.
These modifications follow the DOJ’s announcement, last month, of a single corporate voluntary self-disclosure policy applicable to all U.S. Attorneys’ Offices in the U.S.A. In speech after speech at the ABA White Collar Conference, DOJ officials emphasized the advantages for companies willing to adopt changes to their compliance programs and their approach to discovering potential misconduct to account for these new policies. An in-depth summary of the speeches is available in an article published in the (U.S.) National Law Review recently published.
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