USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
may be eligible for substantial reductions from their sentence. The Justice Manual and Compliance Guidance In addition, both the Justice Manual and the FCPA Resource Guide discuss self-reporting and co-operating with law enforcement, and the DOJ has provided guidance on the types of fac - tors it considers in assessing a company’s com - pliance programme when investigating a corpo - rate entity (the “US Compliance Guidance”). The DOJ is not legally obligated to follow the Guid - ance, which is similarly not binding on other US government authorities. Even so, the DOJ and others generally take these factors into account. The DOJ takes a functional approach to the US Compliance Guidance – the agency does not simply verify whether a compliance programme includes certain components (eg, a whistle- blower programme). Instead, the US Compli - ance Guidance emphasises that the DOJ will make an individualised assessment of a com - pany’s compliance programme based on that company’s particular risk profile and specific context. Indeed, the US Compliance Guidance notes that there is no “rigid formula” for assess - ing compliance programmes and that the topics it addresses are not exhaustive. While recognising that a compliance programme must be tailored to a company’s particular risk profile, the Compliance Guidance identifies best practices that are common to effective compli - ance programmes. These practices include, but are not limited to: • a commitment from senior management to a “culture of compliance;” • a clearly articulated policy against corruption and a code of conduct;
• the assignment of responsibility for over - sight and implementation of the anti-bribery and corruption compliance programme to a senior executive with appropriate experience, sufficient autonomy from management, and resources to ensure the programme is imple - mented effectively; • assessing the risks faced by the company so that the company can take a risk-based approach in designing and implementing its anti-bribery and corruption compliance pro - gramme; and • periodically testing and reviewing the anti- bribery and corruption compliance pro - gramme. The Justice Manual also includes the FCPA Corporate Enforcement Policy (CEP). The CEP establishes a rebuttable presumption that the DOJ will decline to prosecute a company for FCPA violations if the company: • voluntarily self-discloses misconduct; • fully co-operates with the DOJ’s investigation; and • takes timely and appropriate remedial action. The CEP provides insight into how the DOJ assesses compliance and remediation and potential penalty reductions for co-operating companies that do not qualify for a declination. The DOJ has since applied the same approach beyond FCPA violations. CEP Revisions In 2023, the DOJ revised the CEP to reflect changes in DOJ policy and practice, including voluntary disclosure incentives (see 6.2 Volun- tary Disclosure Incentives ). In addition, the CEP revisions reflect updated compliance expecta - tions.
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