Corporate Compliance Programs: U.S. and U.K. Perspectives
In today’s regulatory environment, companies face mounting pressure from law enforcement agencies to maintain robust compliance programs to deter and detect misconduct by employees, third-party vendors and business partners. In the United States, prosecutors have long considered the effectiveness of an entity’s compliance policy to be an important factor informing charging decisions and the negotiation of deferred and non-prosecution agreements. Prosecutors’ focus on compliance measures has only increased. An emphasis on corporate compliance policies is also observed in the United Kingdom.
The U.S. Department of Justice (“DOJ”), Fraud Section recently published a list of topics and questions that it has “frequently found relevant in evaluating a corporate compliance program” in the context of a criminal investigation. In addition, the Fraud Section has announced plans to extend its Foreign Corrupt Practices Act (“FCPA”) Pilot Program, which incentivizes companies to voluntarily self-disclose FCPA-related misconduct and remediate shortcomings in their corporate controls and compliance programs.
An emphasis on corporate compliance policies is also observed in the United Kingdom. For instance, “corporate failure to prevent bribery” is a strict liability offense under section 7 of the Bribery Act of 2010 (the “Bribery Act”). The only complete defense available to a company under investigation for such an offense is proof that it had adopted “adequate procedures” to prevent bribery and corruption. Like the DOJ Fraud Section, the U.K. Ministry of Justice has developed a rubric for evaluating whether a company has adopted “adequate procedures” sufficient to avoid criminal liability under the Bribery Act.
This memorandum briefly discusses recent developments highlighting the importance of adopting rigorous compliance procedures under U.S. and U.K. law.