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Critique of the U.S. Department of Justice Evaluation of Corporate Compliance Programs

Bruce Ortwine (bruce.ortwine20@gmail.com) is a New York City-based Adviser, Global Legal and Compliance, to a major Japanese banking group.

On April 30, 2019, the U.S. Department of Justice (DOJ) Criminal Division updated its Evaluation of Corporate Compliance Programs (Guidance) on the evaluation of a company’s corporate compliance program (CCP).[1] The evaluation is to be considered by DOJ white-collar criminal prosecutors in the event that a criminal offense is committed by an employee or third-party agent or contractor of the company. The evaluation of the CCP is offered as guidelines both to companies to determine the extent to which their own CCPs compare with the Guidance, and to prosecutors to determine whether to prosecute the company itself for the misconduct of its employee, etc. Although the Guidance provides transparency on the required components of an effective CCP, it fails to provide transparency on whether an effective CCP will spare a company from criminal prosecution.

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