One-size Doesn’t Fit All
The Guidance underscores the importance of prosecutors understanding each company’s unique circumstances and how they have influenced the development of its compliance program. For example, prosecutors “should endeavour to understand why the company has chosen to set up the compliance program the way that it has, and why and how the company’s compliance program has evolved over time.”
It now asks prosecutors to make a “reasonable, individualized determination in each case” when evaluating a company’s compliance program, taking into consideration the company’s “size, industry, geographic footprint, and regulatory landscape,” as well as the reasons why a company chose its program’s structure and how the program has evolved over time.
With recent updates, the DOJ has provided clearer guidelines for companies on what to expect when under investigation by US authorities. Having an effective compliance program in place when misconduct takes place can have a positive effect on the outcome of the prosecution or resolution, as long as the program matches the key requirements outlined in the guide.
This is especially important given the additions announced in March 2023 that serve to show that the DOJ is aggressively investigating and prosecuting corporate crime while holding the actors responsible accountable. Therefore, the updated DOJ guide is essential reading for all compliance professionals – regardless of where their company is based.
Companies must understand the DOJ’s recent policy changes and implement a number of short-term measures so that wrongdoing can be swiftly identified and mitigated. They should review and update policies related to device usage and data retention while training employees on best practice in those areas. Evaluation and compensation metrics should also be reviewed while remedial trainings should be held on compliance policies and procedures.