US Department of Justice Revises Guidance on Corporate Compliance and Ethics Programs

On September 23, 2024, at the Society of Corporate Compliance and Ethics’ 23rd Annual Compliance & Ethics Institute, Principal Deputy Attorney General (PDAG) Nicole Argentieri delivered remarks and unveiled revisions to the Department of Justice’s (DOJ) Evaluation of Corporate Compliance Programs (ECCP).

The revisions focus on disruptive technologies including artificial intelligence (AI), the DOJ’s recently announced whistleblower awards program, and corporate compliance and ethics programs’ appropriate access to data and resources.

The ECCP now instructs DOJ prosecutors investigating corporate crime to:

• Consider an organization’s uses of new technologies and whether the organization has conducted a risk assessment of those uses, has taken appropriate steps to mitigate any risks identified in those uses, and is monitoring and testing its technology to ensure it is functioning as intended and consistent with the organization’s code of conduct.
• Question the organization’s employees to evaluate whether the organization has embraced a “speak-up” culture where employees are comfortable reporting compliance concerns. Prosecutors will also evaluate whether the organization has committed to whistleblower protection and anti-retaliation with appropriate training and policies.
• Evaluate whether the organization’s compliance and ethics program personnel have access to relevant data sources and evaluate the adequacy of the assets, resources, and technology available to the program. As to the latter, prosecutors are instructed to consider whether organizations are investing the same resources and technology in compliance and ethics that they are investing in their business units.

Finally, Argentieri provided an update on the compensation clawback pilot program announced last March. So far, nine companies have been required to develop compensation incentives that align with ethical business practices, and the DOJ expects these companies to serve as models for the marketplace going forward. None of the nine companies are involved in the healthcare or life sciences industries.