USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
Individuals, too, can pay a substantial monetary fine or serve prison sentences for bribery or corruption schemes. Typical prison terms for these crimes are often less than ten years, but have ranged as high as 15 years for an FCPA violation and longer for domestic statutes.
compliance programme and determine whether or not a corporation is ready for release after an established period of time. DOJ policy has shifted over time on whether to favour or disfavour monitorships. In May 2025, the DOJ issued a “Memorandum on Selection of Moni - tors in Criminal Division Matters”, which reflects a more restrained approach. The DOJ emphasised that monitorships should be imposed only when neces - sary, and not as a punitive measure. They must be narrowly tailored to address specific risks and compli - ance concerns while minimising cost and disruption to business operations. Prosecutors must also evaluate factors such as the severity of the wrongdoing, the company’s existing compliance programmes, and its ability to self-remediate. Despite this change in enforcement approach, many corporations remain under monitorships due to pre- existing co-operation obligations. 9. Assessment 9.1 Assessment of the Applicable Enforced Legislation Anti-bribery and corruption enforcement is routinely subject to assessment by the US government itself, as well as civil society organisations and international institutions. OECD Evaluation In November 2020, the OECD released an updated evaluation of US anti-bribery and corruption enforce - ment. The OECD generally commended the US efforts but also included a few potential future improvements. Among the strengths, the OECD stated that US enforcement authorities have increasingly addressed the “demand side” of bribery by charging foreign pub - lic officials and their associates. It also positively not - ed the US commitment to co-ordinating multi-jurisdic - tional investigations with agencies in other countries. While the report was largely positive, it nonetheless recommended improvements in the detection of for - eign bribery, the continued harmonisation of DOJ
8. Compliance Expectations 8.1 Compliance Obligations
The national legislation does not establish an affirma - tive duty to prevent corruption (although, as noted elsewhere, US “issuers” are required to maintain an adequate system of internal controls and accurate books and records). 8.2 Compliance Guidelines and Best Practices The DOJ publishes guidance on the Evaluation of Corporate Compliance Programs (ECCP) for pros - ecutors to evaluate whether or not a corporation’s compliance programme was effective at the time of an offence and at the time of resolution, which can affect the appropriate form of resolution, monetary penalty, and corporate obligations. The ECCP there - fore sets out expectations for an effective compliance programme, including whether or not the programme is well designed, applied in good faith, and works in practice. In its September 2024 update to the ECCP, the DOJ introduced several key changes that reflect evolv - ing risk areas. The revised guidance places a strong emphasis on how companies manage risks associ - ated with emerging technologies, particularly artifi - cial intelligence, requiring corporations to engage in proactive oversight and ethical governance. It also broadens expectations around safeguarding of whis - tle-blowers and anti-retaliation policies. Additionally, the DOJ now stresses the importance of providing compliance functions with timely access to data and adequate resources, including data analytics tools. 8.3 Compliance Monitorships The DOJ and SEC may require an independent com - pliance monitor as part of a corporate resolution. Monitors assess the effectiveness of a company’s
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