The “Principles of Federal Prosecution of Business Organizations” in the DOJ’s Justice Manual describes specific factors that prosecutors should consider when conducting an investigation of a corporation, determining whether to bring charges, or negotiating plea or other agreements.1 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.”2
The June 2020 issuance is the third version of the document, with the DOJ having issued guidance originally in 2017 and updating that guidance in April 2019.
The June 2020 version maintains that each corporate compliance program must be evaluated in the specific context of a criminal investigation but provides additional guidance stating that the DOJ makes “reasonable, individualized determination in each case that considers various factors including but not limited to, the company’s size, industry, geographic footprint, regulatory landscape, and other factors, both internal and external to the company’s operations, that might impact its compliance program” (emphasis showing changes). The guidance also focuses on three issues that prosecutors may consider in the course of making individualized determinations:
- Is the corporation’s compliance program well designed?
- Is the program being applied earnestly and in good faith? In other words, is the program adequately resourced and empowered to function effectively? and
- Does the corporation’s compliance program work in practice?3