On June 1, 2020, the Criminal Division of the United States Department of Justice (DOJ) issued an update to its guidance in the Evaluation of Corporate Compliance Programs (Guidance) used by prosecutors to probe corporate compliance programs. DOJ’s Fraud Section first released the Guidance in February 2017, incorporating principles from the DOJ’s Justice Manual. Prior to the 2020 revisions, DOJ revised the Guidance in April 2019, expanding its applicability to the entire DOJ Criminal Division.

The “Principles of Federal Prosecution of Business Organizations” in the DOJ’s Justice Manual describe specific factors that prosecutors should consider when conducting an investigation of a corporation, determining whether to bring charges, or negotiating plea or other agreements. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.”

The 2020 Guidance updates appear to reflect DOJ’s recent experience and feedback from compliance and business communities that have shaped its current approach to evaluating compliance programs. The updates reveal DOJ’s evolving considerations of key compliance themes such as the evolution of compliance programs over time, the adequacy of compliance program resources, the effectiveness of training and communication programs, the need for monitoring of third parties, and considerations related to foreign-law compliance.

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Copyright 2020 Compliance Today, a publication of the Health Care Compliance Association (HCCA).