DOJ Updates its Playbook for Corporate Compliance.
From Bracewell.
On September 23, 2024, Principal Deputy Assistant Attorney General Nicole Argentieri announced that the US Department of Justice (DOJ) had issued updated guidance to federal prosecutors in its “Evaluation of Corporate Compliance Programs†(ECCP). The 2024 ECCP both affirms themes DOJ has emphasized in recent years and brings a new focus to companies’ management of risks associated with emerging technologies, including artificial intelligence.
At a high level, the guidance instructs that an effective compliance program must:
- Consider risks associated with emerging technologies like artificial intelligence (AI), both in commercial operations and the compliance program itself;
- Conduct appropriate risk assessments and implement compliance programs after a merger or acquisition;
- Include robust whistleblower protections; and
- Be accessible and adequately resourced.
Below, we discuss the background of the ECCP, the updates, and their implications.
The ECCP is meant to inform prosecutors’ evaluation of companies’ compliance programs in connection with charging decisions and penalty determinations, and focuses on three key issues: whether the program is (1) well designed; (2) applied earnestly and in good faith, with adequate resourcing and empowerment and (3) actually working in practice. Though directed at prosecutors, the ECCP is a valuable resource for companies in developing, implementing, and reviewing their own compliance programs to ensure they are adequate and aligned with regulatory expectations. Significantly, this assessment is of the compliance program at both the time of the misconduct and the time of resolution.
