US DOJ Updated Guidance on Evaluation of Corporate Compliance Programs

In early June 2020, the Department of Justice of the United States (the “DOJ”) released a revised version of its Guidance on Evaluation of Corporate Compliance Programs (the “US Guidance”). The revised US Guidance includes certain changes to the prior updated version released in April 2019 to incorporate feedback the DOJ received from the business and compliance communities as well as including the DOJ’s own experience. As explained in our prior article available at https://www.marval.com/publicacion/nuevos-lineamientos-del-departamento-de-justicia-de-estados-unidos-13359&lang=en, the US Guidance is meant for prosecutors to assess the effectiveness of a company’s compliance program at the time of the offense and when charging a decision or resolution. In any case, the US Guidance is also useful for entities while considering their compliance programs.

Some of the adjustments introduced in this revised version are the following:

- Emphasis on the importance of a tailor-made compliance program. The US Guidance establishes that prosecutors should endeavor to understand companies’ risk assessments, their compliance programs and how they have evolved over time. Considering the latter, prosecutors should verify if the review is limited to a “snapshot” or, on the contrary, if it is a continuous process that considers both the internal issues and lessons learned as well as the issues faced by other companies operating in the same industry and/or geographical region.

 

- Additional clarifications on policies, trainings and hotlines. For instance, the US Guidance recommends prosecutors assess if the company: (i) tracks employees’ access to the published policies to understand which are attracting their attention, (ii) analyzes their participation during trainings, and (iii) checks on the awareness of hotlines and the way they work, among others.

 

- Suggestions related to third party management. The US Guidance sets forth that prosecutors should assess if third parties risk assessments are carried out “throughout the lifespan of the relationship or primarily during the onboarding process”.

 

- Further references about the importance of post-closing due diligence and integration process of the acquired entity.

 

- Increasing focus on resources, authority, information, responsibilities and tasks of the compliance function to verify whether the compliance program is adequately resourced and empowered to function effectively.

 

In addition, the updated US Guidance addresses the impact that foreign law may have on the companies’ compliance programs as well as the measures and decisions taken in such context. Therefore, the Anti-corruption Law 27,401 (which establishes corporate criminal liability for bribery-related crimes) and both Guidelines issued by the Argentine

Anti-corruption Office (the “AO”) on corporate anti-corruption compliance programs may have an increasing importance for entities doing business in Argentina.

In particular, the approach of the AO Guidelines (both the general guidelines and the specific guidance for small and medium-sized enterprises) vary from the US Guidance in terms of structure, recipients, purpose, extension and analysis (for additional details refer to the abovementioned article). However, most of the issues covered in the US Guidance are also addressed in the AO Guidelines, mainly acknowledging the importance of risk assessment as a starting point for the design, implementation and evaluation of corporate compliance programs.

In sum, since the enactment of Law 27,401 in 2017, the AO’s measures have been in line with the highest international standards on the fight against corruption (including the DOJ initiatives and the US Guidance).