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DOJ Highlights 11 Factors Relevant In Evaluating A Corporate Compliance Program

Last week the DOJ released this document [1] highlighting 11 factors relevant in evaluating a corporate compliance program.

The factors should be familiar to compliance professionals well-versed on best-practices policies and procedures (whether in the FCPA context or otherwise) and there is really nothing new about the document (indeed the document cites to sources long in the public domain). Yet the document, the origins and purpose of which are not known, was released by a “new” DOJ with new leadership and is thus worthy of highlighting.

Organizing the existing body of best practices in one document is all fine and dandy. The more important question however 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 [2]).

The 8-page document begins as follows.

“[This document] provides some important topics and sample questions that the Fraud Section has frequently found relevant in evaluating a corporate compliance program. The topics and questions … form neither a checklist nor a formula. In any particular case, the topics and questions set forth … may not all be relevant, and others may be more salient given the particular facts at issue.”

From there the document sets forth the following 11 factors.

1. Analysis and Remediation of Underlying Misconduct

2. Senior and Middle Management


3. Autonomy and Resources

4. Policies and Procedures

a. Design and Accessibility

b. Operational Integration

5. Risk Assessment

6. Training and Communications

7. Confidential Reporting and Investigation

8. Incentives and Disciplinary Measures

9. Continuous Improvement, Periodic Testing and Review

10. Third Party Management

11. Mergers and Acquisitions (M&A)

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