Very quietly, on February 8th, the Justice Department released a document, entitled “Evaluation of Corporate Compliance Programs” (Evaluation), on its Fraud Section website. It was not detected by the compliance community until last week. The document is an 11-part list of questions that encapsulates the Justice Department’s most current thinking on what constitutes a best practices compliance program. Within the list are 46 different questions that a Chief Compliance Officer or compliance practitioner can use to benchmark a compliance program. Even with this no-publicity release, it is an incredibly valuable and most significantly useful resource for every compliance practitioner.
The Evaluation, most generally, follows the Justice Department and SEC’s seminal “Ten Hallmarks of an Effective Compliance Program,” released in the 2012 FCPA Guidance. If there is one overriding theme in the Evaluation, it is the Justice Department’s emphasis on doing compliance, as the questions posed are designed to test how far down your compliance program is incorporated into the fabric of your organization. The Evaluation is not simply a restatement of the Ten Hallmarks, as it clearly incorporates the DoJ’s evolution in what constitutes a best practices compliance program and it certainly builds upon the information put forward in the Justice Department’s FCPA Pilot Program regarding effective compliance programs, most particularly found in Prong 3 Remediation. The Man From FCPA detects the influence of Justice Department Compliance Counsel Hui Chen in providing solid information to the greater compliance community on this score.
Over the past 15 months, the Justice Department has consistently provided the compliance community with a series of statements and written documentation on how it will review and evaluate compliance programs. Sometimes these insights are called metrics and at other times, as with the Evaluation, they are phrased as questions or inquiries. Whatever the moniker, each time the Justice Department communicates such information, it provides the compliance practitioner with solid intelligence on not only how the Justice Department will consider compliance programs but, equally important, the latest and greatest on the best practices for an effective compliance program.