Will Your Company Withstand Government Scrutiny?
Updates to DOJ’s evaluation of corporate compliance
On September 23, 2024, the U.S. Department of Justice (DOJ) updated its Evaluation of Corporate Compliance Programs (ECCP) guidance. First published in 2017, the ECCP sets out factors that DOJ Criminal Division prosecutors will consider when evaluating the compliance program of a company facing a criminal enforcement action. While primarily intended for prosecutors, the ECCP also serves as a valuable resource for companies to assess how their programs might be judged by the DOJ. A company with an effective compliance program is more likely to receive a favorable resolution in an enforcement action, including reduced monetary penalties and less burdensome ongoing compliance obligations, as part of the resolution terms.
Several revisions to the ECCP since its inception highlight the DOJ’s focus on understanding the rationale behind the program’s design, evolution over time and functionality in addressing the relevant company’s risk profile.
Companies should note the following key additions introduced in the latest ECCP update:
- Risks Associated With New and Emerging Technology
- Incentivizing and Protecting Whistleblowers
- Access to Data and Resources for Compliance Functions
- Incorporating Lessons Learned
- Post-Transaction Compliance Integration
Conclusion
Companies should consider reviewing their compliance programs in response to the additional factors incorporated into the ECCP. This review should assess whether the company has sufficient measures to address risks associated with AI and other emerging technologies, whether robust mechanisms are in place to promote whistleblowing within the organization and how to conduct adequate post-transaction compliance oversight of newly acquired businesses. The DOJ is also intensifying its focus on the compliance function’s access to comprehensive organizational data. The agency expects companies to utilize this information to continuously update and refine their compliance programs, drawing on lessons learned from both internal and external issues.
https://www.justice.gov/criminal/criminal-fraud/page/file/937501/dl
Commentary by: Raylea Stelmach
Edited by:
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