For decades there has been tension between the government and companies that are the subject of a criminal investigation. Issues often arise as to the assessment of a company’s compliance program and, when the company cooperates with an investigation, as to what constitutes substantial assistance.
The Department of Justice (DOJ) recently expounded on what factors federal prosecutors are to review in assessing a company’s compliance program. The hallmarks of effective compliance programs have been the subject of numerous scholarly articles, and the DOJ has also weighed in on the subject, in publications like the FCPA Resource Guide. The DOJ Fraud Section’s recent addition of guidance for use in conducting investigations of corporate entities and evaluating their corporate compliance programs should be welcomed by companies as it establishes guideposts and provides some direction. Although the guidance is nonbinding, the bullet-point format lends itself to use by lawyers and compliance officers as a list of areas that need to be specifically addressed when creating, implementing and reviewing compliance programs. More