The US DoJ has issued in April updated guidance in the context of the specific factors that prosecutors should consider in conducting an investigation of a corporation, determining whether to bring charges, and negotiating plea or other agreements. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one”. The guidance says that it is meant to assist prosecutors in making informed decisions as to whether, and to what extent, the corporation’s compliance programme was effective at the time of the offence, and is effective at the time of a charging decision or resolution, for purposes of determining the appropriate form of any resolution or prosecution; the monetary penalty, if any; and compliance obligations contained in any corporate criminal resolution (e.g. monitoring or reporting obligations). It starts by saying that there are 3 basic questions that should be asked –
- Is the compliance programme well designed?
- Is the programme being applied earnestly and in good faith? (In other words, is the programme being implemented effectively?)
- Does the corporation’s compliance programme work in practice?