Reed Smith Client Alerts

On March 3, 2023, Assistant Attorney General for the Criminal Division of the Department of Justice (DOJ) Kenneth A. Polite Jr. delivered keynote remarks at the American Bar Association National Institute on White Collar Crime in Miami, Florida. Polite announced several significant changes to the DOJ’s Evaluation of Corporate Compliance Programs (ECCP). The ECCP now includes guidance on electronic communication preservation and corporate compensation structures.

The ECCP is meant to assist prosecutors in making informed decisions as to the adequacy and effectiveness of a corporation’s compliance program at both the time of the misconduct and the time the charging decision or resolution is issued. Prosecutors will evaluate the company’s performance on the topics noted in the ECCP when determining the type of resolution necessary for a particular case.

Business-related electronic messaging and preservation

First, Polite noted that the ECCP now emphasizes that business-related electronic data and communications should be preserved and accessible. In particular, companies should retain all business-related communications that take place on personal electronic devices, communication platforms, or third-party messaging applications, and should ensure that such communications can be produced to the government in the event of an investigation. Under the revised ECCP, the DOJ will consider how a corporation’s policies and procedures in this area are tailored to its specific risk profile and business needs. Polite noted that prosecutors will take the company’s performance in this area into consideration when determining an appropriate resolution following corporate misconduct. In particular, the ECCP states that prosecutors should consider factors such as: