On April 30, 2019, the US Department of Justice (DOJ) released new guidance that provides substantial insight into how the agency evaluates corporate compliance programs. The guidance codifies elements long understood as DOJ priorities for evaluating an operationally effective corporate compliance program and applies them to all corporate investigations, not just FCPA matters.
Determining the adequacy and effectiveness of a corporate compliance program has long been one of the key "Filip Factors" that the DOJ uses in determining whether to charge a corporation with any wrongdoing. USAM 9-28.300(A)(5). This new guidance elaborates on six key points within that overarching question, namely: policies and procedures, training and communications, a confidential reporting structure and investigation process, third-party management, and mergers and acquisitions. The bottom line is that when evaluating a corporate compliance program, the DOJ will be sharply focused on answering three fundamental questions: 1) Is the corporation's compliance program well-designed?; 2) Is the program being applied earnestly and in good faith? (i.e., is the program being implemented effectively?); and 3) Does the corporation's compliance program work in practice?