On February 8, 2017, the Criminal Division of the U.S.
Department of Justice quietly issued new guidance on corporate
compliance programs for companies implicated in misconduct.
Specifically, the Criminal Division posted a set of "important
topics and sample questions that the Fraud Section has frequently
found relevant in evaluating a corporate compliance program"
to the Strategy, Policy, and Training Unit page of the Criminal
Division's website.1 The DOJ document can be
accessed here: Evaluation of Corporate Compliance
Programs. The Criminal Division had previously announced
that the DOJ would be publicizing a list of sample questions to
give companies a better idea of the types of issues that federal
investigators may be concerned about in evaluating corporate
compliance programs more than a year ago, in February 2016, and
this appears to be the result of those efforts. The Criminal
Division seems to have issued this new guidance without issuing a
press release or making any accompanying public statement or
announcement, leaving it to practitioners and compliance
professionals to stumble upon it.
Troutman Sanders' analysis of this new guidance is ongoing,
but at first glance, it appears to be significant in several
material respects. First, while the sample questions and topics
largely reiterate prior guidance in the U.S. Attorney's
Manual ("USAM"), in the U.S. Sentencing
Guidelines, in Fraud Section corporate resolution agreements,
in A Resource Guide to the U.S. Foreign Corrupt Practices
Act ("FCPA Guide") published in November 2012 by the
DOJ and the U.S. Securities and Exchange Commission, and in other
policies and announcements, it is significant in that it appears to
be some of the most detailed guidance ever issued by the DOJ on
corporate compliance programs that is intended to be of general
applicability to all companies and all types of corporate
misconduct. In contrast, most recent DOJ guidance on corporate
compliance programs has been focused specifically on FCPA
Second, new U.S. Attorney General Jefferson B. Sessions III was
confirmed by the U.S. Senate at 7:23 p.m. on the same date that the
sample questions and topics were posted to the Criminal
Division's website, and Attorney General Sessions was not sworn
in until the next day, February 9, 2016. This raises questions as
to whether the new Attorney General reviewed or approved the new
guidance before it was issued, and whether his administration will
modify or rescind it. While the Criminal Division's leadership
may simply have been completing unfinished tasks in anticipation of
the end of their careers with the DOJ, the timing of its issuance
vis-ŕ-vis the confirmation of the new Attorney General is
also potentially suspect because, although the guidance
specifically contemplates DOJ's evaluation of a company's
compliance program "in determining whether to bring
charges" against the company, Attorney General Sessions has
previously criticized corporate deferred prosecution agreements and
non-prosecution agreements, saying, for example, "This is a
dangerous philosophy. Normally, I was taught if they violated a
law, you charge them. If they didn't violate the law, you
don't charge them."2
It is also worth pointing out that in discussing the forthcoming
sample questions and topics last year, the Chief of the Fraud
Section of the Criminal Division was reported to have said,
"We are not going to be looking for specific answers" and
for companies to "check boxes... We don't have a
cookie-cutter view when it comes to compliance."3
But in the sample questions issued on February 8th, the DOJ
included boxes to check next to each set of questions.
2. Layne et al., "Pro-business Sessions will not go
easy on corporate crime: lawyers" Reuters.com (Nov. 18, 2016)
(quoting questioning of then-U.S. Deputy Attorney General nominee
James M. Cole by then-Senator Sessions in 2010).
3. Odom, "DOJ to Soon Issue Sample Questions on
Corporate Compliance," Bloomberg BNA.com (Feb. 17,
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The DOJ Fraud Section's "Evaluation of Corporate Compliance Programs" puts chief compliance officers on notice about how the adequacy of their companies' compliance programs is evaluated by prosecutors.
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