Another week, another speech by Assistant Attorney General Kenneth Polite.
In the speech, Polite told an audience of white collar criminal professionals not to” fall victim to recency bias” (even though of course the DOJ facilitates it) and served up a word salad of ambiguous terms and concepts.
I have been reading speeches by DOJ enforcement officials for approximately 15 years and Polite’s speech is one of the worst I have encountered as it is mostly just a play on words.
This prior post highlighted the recent revisions to the DOJ’s “Evaluation of Corporate Compliance Programs” (ECCP) guidance document. This post provides the big picture.
For starters, there is nothing per se “wrong” with the ECCP or its revisions. In fact, the ECCP is a nicely written and organized document. Substantively however, the revised ECCP uses the word “effective” or “effectively” 54 times (the original version used the word “effective” or “effectively” 51 times). However, there is no legal requirement that business organizations have “effective” compliance programs. Moreover, the revised ECCP (just like the original ECCP) is little more than a document full of questions. (Precisely, the revised ECCP contains 168 questions whereas the original ECCP contained 151 questions).
Big picture, the revised ECCP uses the word “effective” or “effectively” 3 more times than the original ECCP and the revised ECCP has 17 more questions than the original ECCP.
Prior posts here and here discussed the DOJ’s “Evaluation of Corporate Compliance Programs” (ECCP) guidance document released in Spring 2019.
Recently, the DOJ released an updated version. While the ECCP is not Foreign Corrupt Practices Act specific, it is FCPA relevant and set forth below are the most meaningful changes to the ECCP.
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash podcast episode is a conversation with Matthew Miner (Morgan Lewis – who recently served as DOJ Deputy Assistant Attorney General in the Criminal Division). While at the DOJ, Miner helped to develop various DOJ policy documents including its “inability to pay” guidance (see here), the FCPA Corporate Enforcement Policy (see here), and the Evaluation of Corporate Compliance Programs (see here). During the podcast, Miner discusses how these various DOJ policies are likely to be interpreted during the COVID-19 crisis.
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.”
