One-size Doesn’t Fit All
The 2020 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 programme’s structure and how the programme has evolved over time.
With this update the DoJ provides 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 programme matches the key requirements outlined in the guide. Therefore, the updated DoJ guide is essential reading for all compliance professionals – regardless of where their company is based.