Critique of the U.S. Department of Justice Evaluation of Corporate Compliance Programs
Bruce Ortwine, General Counsel, Americas; Adviser, Global Legal and Compliance; Senior Executive Vice President, Sumitomo Mitsui Trust Bank, Limited
On April 30, 2019, the U.S. Department of Justice, Criminal Division (the “DOJ”) published updated guidance (the “DOJ Guidance”) on the evaluation of a company’s corporate compliance program (a “CCP”). The evaluation is to be considered by DOJ white-collar criminal prosecutors in the event that a criminal offense is committed by an employee or third-party agent or contractor of the company. The evaluation of the CCP is offered as guidelines both to a company to determine the extent to which its own CCP compares with the requirements of the DOJ Guidance, and to prosecutors to determine whether to prosecute the company itself for the misconduct of its employee or third party agent or contractor. While the DOJ Guidance provides transparency on the required components of an effective CCP, it fails to provide transparency on whether an effective CCP will spare a company from criminal prosecution.
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