Top Menu

Assistant Attorney General Benczkowski On Corporate Compliance And His Odd Use Of The Term “Deterrence”

benczkowski

Last week Assistant Attorney General Brian Benczkowski gave this speech at the 20th Annual Pharmaceutical and Medical Device Compliance Congress – an event frequently on the DOJ’s speech calendar.

As highlighted below, Benczkowski delivered typical Department of Justice corporate compliance talking points.

However, what stood out in his speech was his repeated odd use of the word “deterrence.”

Continue Reading

DOJ Releases Memo Titled “Evaluating A Business Organization’s Inability To Pay A Criminal Fine Or Criminal Monetary Penalty”

inabilitypay

Prior posts here and here highlighted several Foreign Corrupt Practices Act enforcement actions in which a company received a reduction in the settlement amount based on a claimed inability to pay. In certain instances, it appears as if the DOJ / SEC were duped (see here for example).

Thus, yesterday’s release of this non-binding DOJ policy memo titled “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty,” while not FCPA specific, is FCPA relevant.

Continue Reading

DOJ Deputy Assistant Attorney General Miner On “The Two Primary Goals Of White Collar Criminal Enforcement” (With Commentary)

miner

It’s mid-September which means a few things: the days are getting shorter, the trees are beginning to show color, and DOJ and SEC enforcement officials are on the speaking circuit.

Earlier this week it was SEC Chairman Jay Clayton (see here for the prior post) and yesterday it was DOJ Deputy Assistant Attorney General Matthew Miner who spoke on the two primary goals of white collar criminal enforcement: “(1) to deter legally non-compliant behavior and punish it where it does occur; and (2) to encourage greater compliant behavior, including creating a more level playing field for those who play by the rules.”

Continue Reading

Things That Caught My Eye In The DOJ’s Evaluation Of Corporate Compliance Programs Guidance Document

caughteye

This prior post went in-depth into the DOJ’s recently released “Evaluation of Corporate Compliance Programs” (ECCP) guidance document. This post continues the analysis by highlighting additional issues in the ECCP that caught my eye

For starters, there is nothing “wrong” with the ECCP per se. In fact, it is a nicely written and organized document. Substantively however, the ECCP uses the word “effective” 49 times, but there is no legal requirement that business organizations have “effective” compliance programs.

If a business organization wants to exceed the statutory standards set forth in the FCPA’s internal controls provisions (“controls sufficient to provide reasonable assurances” that certain objective are met) that is great! However, the legal and policy concern with the ECCP is that in an official U.S. government document the DOJ says it is going to base decisions about prosecutions and form of resolutions, monetary penalties, and compliance obligations in corporate criminal resolutions on specific factors, most of which, are not even found in any law passed by Congress.

Continue Reading

DOJ Releases “The Evaluation Of Corporate Compliance Programs” Guidance Document

DOJ2

Earlier this week, the DOJ Criminal Division released this guidance document titled “The Evaluation of Corporate Compliance Programs” (ECCP).

The latest version of the guidance document which “sets forth topics that the Criminal Division has frequently found relevant in evaluating a corporate compliance” is likely to generate a substantial amount of coverage. However, there is little new substantive information in the document compared to the DOJ’s February 2017 release of its Evaluation of Corporate Compliance Programs (see here for the prior post) and in fact there was little new information in the February 2017 document as it cited to sources long in the public domain). Indeed, the ECCP contains a spot-on footnote which states that many of the topics discussed appear in other resources long in the public domain.

While the ECCP is not Foreign Corrupt Practices Act specific, it is FCPA relevant. Nevertheless, the policy issue raised with the ECCP (as well as other forms of DOJ guidance) is what should happen if a business organization acts consistent with the factors, but an employee nevertheless exposes the entity to legal liability. Consistent with the FCPA-like laws of many peer countries, this should be relevant as a matter of law and not merely in the opaque, inconsistent, and unpredictable world of DOJ decision making. (See here).

Continue Reading

Powered by WordPress. Designed by WooThemes