Intelligently Evolving Your Corporate Compliance Program

By: Michael S. Stanek, Sarah E. Walters, Martha K. Louks, Michelle Lowery & Katharine O’Connor (McDermott Will & Emery)

In June 2020, DOJ updated its guidance on the Evaluation of Corporate Compliance Programs. The guidance, which was first issued in 2017 and updated in 2019, lays out a series of factors for prosecutors to consider when assessing the effectiveness of corporate compliance programs as part of making charging decisions and negotiating resolutions. The overarching theme of the updated guidance, which provides a roadmap for designing and implementing compliance programs, is a renewed emphasis on the substance and adequacy of resources made available to the compliance program. It also reflects a focus on the need to both continually assess whether the compliance program is working, and use data in a meaningful way to assess the program.

Leadership in DOJ’s Fraud Section has “embraced, wholesale, the proposition that data can and does serve as a significant indicator of fraud, foreign bribery, and other white-collar offenses.” In November 2020, at the Latin American Compliance Conference, Acting Deputy Assistant Attorney General Robert Zink emphasized the premium that DOJ is placing on data analytics. Zink explained that DOJ itself uses data analytics in the Foreign Corrupt Practices Act, healthcare fraud and securities fraud spaces to identify leads and potential misconduct. Zink went on to say that to the extent a company has “ready access to data that could be probative of misconduct, [DOJ] would hope and expect they would avail themselves of the opportunity to mine that data to figure out whether bad stuff is happening.” And so, Zink concluded, “companies that invest and take the time to invest and develop robust data analytics programs are certainly viewed favorably” by Zink and other prosecutors evaluating corporate compliance programs…

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