On February 8, 2017, the Criminal Division of the U.S. Department of Justice quietly issued new guidance on corporate compliance programs for companies implicated in misconduct. Specifically, the Criminal Division posted a set of “important topics and sample questions that the Fraud Section has frequently found relevant in evaluating a corporate compliance program” to the Strategy, Policy, and Training Unit page of the Criminal Division’s website.1 The DOJ document can be accessed here: Evaluation of Corporate Compliance Programs. The Criminal Division had previously announced that the DOJ would be publicizing a list of sample questions to give companies a better idea of the types of issues that federal investigators may be concerned about in evaluating corporate compliance programs more than a year ago, in February 2016, and this appears to be the result of those efforts. The Criminal Division seems to have issued this new guidance without issuing a press release or making any accompanying public statement or announcement, leaving it to practitioners and compliance professionals to stumble upon it.
Troutman Sanders’ analysis of this new guidance is ongoing, but at first glance, it appears to be significant in several material respects. First, while the sample questions and topics largely reiterate prior guidance in the U.S. Attorney’s Manual (“USAM”), in the U.S. Sentencing Guidelines, in Fraud Section corporate resolution agreements, in A Resource Guide to the U.S. Foreign Corrupt Practices Act (“FCPA Guide”) published in November 2012 by the DOJ and the U.S. Securities and Exchange Commission, and in other policies and announcements, it is significant in that it appears to be some of the most detailed guidance ever issued by the DOJ on corporate compliance programs that is intended to be of general applicability to all companies and all types of corporate misconduct. In contrast, most recent DOJ guidance on corporate compliance programs has been focused specifically on FCPA matters.
Second, new U.S. Attorney General Jefferson B. Sessions III was confirmed by the U.S. Senate at 7:23 p.m. on the same date that the sample questions and topics were posted to the Criminal Division’s website, and Attorney General Sessions was not sworn in until the next day, February 9, 2016. This raises questions as to whether the new Attorney General reviewed or approved the new guidance before it was issued, and whether his administration will modify or rescind it. While the Criminal Division’s leadership may simply have been completing unfinished tasks in anticipation of the end of their careers with the DOJ, the timing of its issuance vis-à-vis the confirmation of the new Attorney General is also potentially suspect because, although the guidance specifically contemplates DOJ’s evaluation of a company’s compliance program “in determining whether to bring charges” against the company, Attorney General Sessions has previously criticized corporate deferred prosecution agreements and non-prosecution agreements, saying, for example, “This is a dangerous philosophy. Normally, I was taught if they violated a law, you charge them. If they didn’t violate the law, you don’t charge them.”2
It is also worth pointing out that in discussing the forthcoming sample questions and topics last year, the Chief of the Fraud Section of the Criminal Division was reported to have said, “We are not going to be looking for specific answers” and for companies to “check boxes… We don’t have a cookie-cutter view when it comes to compliance.”3 But in the sample questions issued on February 8th, the DOJ included boxes to check next to each set of questions.