FCPA Flash Podcast – A Conversation With Ryan McConnell Regarding The DOJ’s “Evaluation Of Corporate Compliance Programs” Policy Document
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 episode is a conversation with Ryan McConnell (a former federal prosecutor and founder of the boutique Houston law firm R. McConnell Group). The focus of the podcast is the DOJ’s recent release of a policy document titled “Evaluation of Corporate Compliance Programs” (see here and here for prior posts) and during the podcast McConnell responds to the following questions: (i) whether the business community deserves more stability rather than ever-changing DOJ guidance; (ii) how the recent guidance is not really an update, but more of a consolidation” of prior guidance and thus generally a yawner; (iii) why the word “effective” is so prominently mentioned in the guidance; and (iv) how business organization compliance with the guidance should be measured.
Things That Caught My Eye In The DOJ’s Evaluation Of Corporate Compliance Programs Guidance Document
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.
DOJ Releases “The Evaluation Of Corporate Compliance Programs” Guidance Document
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).