United States: DOJ Announces New Compliance Counsel And Outlines Metrics For Evaluating Corporate Compliance Programs Under Scrutiny

Last Updated: November 6 2015
Article by Ryan Rohlfsen


In July 2015, the U.S. Department of Justice's Criminal Division revealed that it was hiring a Compliance Counsel to assist in assessing the quality and effectiveness of companies' corporate compliance programs under scrutiny by the DOJ.1 On November 2, 2015, the DOJ announced that it has appointed Hui Chen, a former federal prosecutor, to this role as part of the Criminal Division's Fraud Section. Before joining DOJ, Ms. Chen held senior in-house compliance roles for two major companies.

In conjunction with the announcement of Ms. Chen's appointment, U.S. Assistant Attorney General ("AAG") Leslie Caldwell outlined several metrics, detailed below, that the Compliance Counsel will use to evaluate the effectiveness of corporate compliance programs.2 The Compliance Counsel will also help the DOJ in tailoring remedial compliance measures as part of legal resolutions with companies. 

AAG Caldwell's remarks reflect the latest development in a series of guidance by DOJ officials over the last year related to corporate criminal conduct. In particular, the DOJ has made clear in public statements, as well as the recent "Yates Memorandum," that it expects companies under investigation to provide information on culpable individuals to assist the DOJ in its investigation.3 The Compliance Counsel role, coupled with the related metrics, further demonstrate the scrutiny DOJ will place on corporate compliance programs to assist in determining whether, or to what extent, a company should be held responsible for the actions of its employees or agents. 

Role of DOJ's Compliance Counsel

AAG Caldwell made it clear that the addition of the Compliance Counsel is not "an indication that the department is moving toward recognizing or instituting a 'compliance defense.'" Rather, the retention is an acknowledgment that over the past twenty years corporate compliance programs have become not only sophisticated but also industry- and company-specific. The Compliance Counsel's chief mandates are to assist the DOJ in assessing corporate compliance programs in a more uniform manner, and to suggest upon resolution tailored reforms to corporate compliance programs.4 In this capacity, the Compliance Counsel will help the DOJ to determine whether company compliance programs are essentially "window dressing," by testing the validity of company claims about their programs.

Corporate Compliance Program Evaluation

AAG Caldwell highlighted the following key considerations for the Compliance Counsel, in conjunction with the lead prosecutors, to use in assessing corporate compliance programs on a "case-by-case" basis. 

  • Does the company ensure that its directors and senior managers provide strong, explicit and visible support for its corporate compliance policies? 
  • Do the people who are responsible for compliance have stature within the company? Do compliance teams get adequate funding and access to necessary resources? 
    • AAG Caldwell noted that the DOJ will not expect a small company to have the same compliance resources as a Fortune-50 company.
  • Are the company's compliance policies clear and in writing? Are they easily understood by employees? Are the policies translated into languages spoken by the company's employees?
  • Does the company ensure that its compliance policies are effectively communicated to all employees? Are its written policies easy for employees to find? Do employees have repeated trainings, which should include direction regarding what to do or with whom to consult when issues arise?
  • Does the company review its policies and practices to keep them up-to-date with evolving risks and circumstances? 
    • AAG Caldwell emphasized the importance of this metric for U.S.-based entities that acquire or merge with other businesses, especially foreign ones.
  • Are there mechanisms to enforce compliance policies? Do they include both incentivizing good compliance and disciplining violations? Is discipline evenhanded? 
    • AAG Caldwell added that the DOJ does not look favorably on situations in which low-level employees who may have engaged in misconduct are terminated, but the more senior people who either directed or deliberately turned a blind eye to the conduct suffer no consequences, because such action sends the wrong message – to other employees, to the market and to the government – about the company's commitment to compliance.
  • Does the company sensitize third parties like vendors, agents or consultants to the company's expectation that its partners are also serious about compliance? 

In the anti-money laundering and sanctions context, AAG Caldwell pointed out that for financial institutions, effective corporate compliance programs require even more than the above-listed considerations. In addition to tailor-made "know-your-customer" policies and compliance with U.S. laws, financial institutions must generally diffuse information about potentially suspicious activity throughout the bank's branches or offices, and banks with a U.S. presence must give U.S. senior managers a "material role" in the overall compliance framework. AAG Caldwell also stressed that financial institutions under scrutiny must be candid with regulators.

While AAG Caldwell acknowledged that the vast majority of financial institutions correctly file Suspicious Activity Reports when they suspect that an account is connected to "nefarious" activity, AAG Caldwell also encouraged financial institutions to consider, in appropriate cases, whether to take more action: specifically, to alert law enforcement authorities about the problem, because they may be able to seize the funds, initiate an investigation, or take other proactive steps. Financial institutions that unilaterally take proactive steps by, for example, closing suspicious accounts risk prompting criminals to move illicit funds elsewhere.


Following the "Yates Memorandum," the new Compliance Counsel and AAG Caldwell's latest remarks underscore the DOJ's emphasis on effective corporate compliance programs when assessing whether to charge corporations for failing to detect or prevent criminal wrongdoing by their employees. Notably, AAG Caldwell made clear that neither the DOJ nor the Compliance Counsel will seek to prosecute the mistakes, accidents, or bad business judgment of compliance professionals. Rather, AAG Caldwell said that the DOJ views compliance professionals "as the good guys and as our allies." Accordingly, compliance professionals will continue to play an important role going forward in the maintenance of effective corporate compliance programs. 


1. U.S. DOJ Hiring Compliance Expert, Reuters, Jul. 30, 2015, available here.

2. Leslie R. Caldwell, U.S. Dep't of Justice, Speech at SIFMA Compliance and Legal Society New York Regional Seminar (Nov. 2, 2015), available here.

3. See Ropes & Gray LLP, Client Alert: DOJ Issues Guidance on Individual Accountability for Corporate Misconduct (Sept. 11, 2015); Leslie Caldwell, U.S. Dep't of Justice, Speech at American Conference Institute's 31st International Conference on the Foreign Corrupt Practices Act (Nov. 19. 2014) (emphasizing self-reporting); Leslie R. Caldwell, U.S. Dep't of Justice, Remarks at the Compliance Week Conference (May 19, 2015) (emphasizing corporate compliance programs); Leslie Caldwell, U.S. Dep't of Justice, Remarks at the Second Annual Global Investigations Review Conference (Sept. 22, 2015) (emphasizing individual culpability and discussing the Yates Memorandum).

4. Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions