The Assistant Attorney General and head of the Department of Justice’s Criminal Division recently sat for an interview with the Wall Street Journal where he provided important insight into the Department’s increased focus on corporate compliance.
Drawing on his experience in the U.S. Attorney’s office and as the Chief Compliance Officer at a Fortune 500 company, Polite described the importance of “prevention” and why investment in the preventative aspects of corporate compliance programs will be crucial to the Department’s overall efforts to fight corporate misconduct. Recognizing the Department is well situated to expand on its current policies, the Assistant Attorney General underscored the realities and need for a wider approach in halting future violations: “Even if we tried to prosecute every instance of corporate wrongdoing that we can possibly achieve, it still wouldn’t be enough…. We have to invest in prevention as a department, and, frankly, as a society.”
Polite further commented on the success of the community outreach model in combatting violent crimes, suggesting the Department may look to employ a similar model in the corporate enforcement space to supplement its strategies against corporate malfeasance. Polite also acknowledged that the Department’s policies on white-collar crime should be rounded and “seamlessly analogous” with the rest of its wide-ranging brief, as it relates to crime prevention, noting: “[l]ike any other area of criminality, we can’t prosecute our way to a fully compliant corporate culture.”
In making these comments, Polite nevertheless intended to convey “to [the] corporate community how important it is to [the Department] that they invest” in prevention.
The Assistant Attorney General’s comments regarding prevention come as no surprise given the Department’s increased focus on corporate compliance and internal controls in recent months. Polite announced earlier this year that Chief Compliance Officers (CCOs) will be required to certify that the company’s compliance program is “reasonably designed to prevent and detect” future violations among other representations in all corporate resolutions and settlement agreements with the Department.
Given the Department’s increased focus on corporate governance and compliance, organizations in heavily regulated industries should consider retaining outside counsel to lead a privileged enterprise risk assessment intended to analyze the company’s risk profile against the company’s existing compliance program. Furthermore, entities engaging in settlement negotiations with the Department should be prepared to include their CCOs in the negotiation process as certification may likely be a prerequisite to settlement.