USA Trends and Developments Contributed by: Steve Spiegelhalter and Bridget Johnson, Alvarez & Marsal
Continued guidance and emphasis on compliance The current administration has made it clear that robust compliance programmes are a critical tool in mitigating corporate misconduct and pro - moting a self-policing environment. The DOJ’s expectations for companies are ever-increas - ing as risk landscapes evolve and technology becomes more sophisticated. The Evaluation of Corporate Compliance Pro - grams (ECCP) guidance is one of the channels through which the DOJ relays its compliance expectations to companies. While the ECCP exists to guide federal prosecutors in assessing defendants’ compliance programmes, it has also become an essential reference for companies seeking to design, implement, and continuously improve their compliance programmes. The DOJ’s updates to the guidance over the past several years have broadly focused on the use of data and technology in compliance programmes, the continuous improvement and adaptation of compliance programmes, and leadership’s role in fostering an ethical corporate culture. The 2024 update to the ECCP, released in Sep - tember, is a natural evolution of these priori - ties. The update includes substantial revisions that reflect growing concerns around emerging technologies, such as artificial intelligence and the importance of data analytics and monitoring as part of an effective programme. The update also bolsters the DOJ’s expectations around whistle-blower programmes, including whether companies’ training regimes and policies ade - quately encourage whistle-blowing and safe - guard whistle-blowers. Finally, the 2024 ECCP revisions emphasise the importance of incorpo - rating “lessons learned” into companies’ compli - ance programmes – internal lessons and ones learned from other companies in related indus -
tries or geographies. The DOJ expects compa - nies to systematically track and integrate these lessons and to keep an eye on their peers for emerging risks. The DOJ continues to experiment with incentives Over the past several years, the US govern - ment introduced several policies designed to align company incentives with enforcement priorities. These efforts have included expand - ing corporate self-disclosure programmes and establishing clearer benefits for companies that take proactive steps to identify and address mis - conduct. This year, the government continued its focus on incentivising corporate compliance, with new and updated policies aimed at promot - ing transparency, accountability, and stronger co-operation between the private sector and enforcement agencies. The DOJ’s Corporate Whistleblower Awards Pilot Program is the most notable new initia- tive. Launched in August 2024, the programme aims to build on the success of existing whistle- blower programmes like those maintained by the Securities and Exchange Commission (SEC) and Commodities Futures Trading Commission (CFTC), while also filling in gaps between those programmes – or, as Lisa Monaco described them, a “patchwork quilt that doesn’t cover the whole bed.” The DOJ designed the new pro - gramme to financially incentivise individuals to report violations of US law, with a specific focus on corporate wrongdoing. The programme is particularly focused on combating both foreign and domestic corruption, including violations of the Foreign Corrupt Practices Act (FCPA) and the new Foreign Extortion Prevention Act (FEPA), which was introduced in December 2023 and is designed to target the “demand” side of foreign corruption: misconduct by foreign officials.
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