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Corporate Governance General Counsel and In House Counsel Litigation Regulation

The DOJ's New Parameters for Evaluating Corporate Compliance Programs

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

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An effective compliance program is essential for any business, allowing the organization to identify potential vulnerabilities and to minimize risk. It is also relevant in defending against government investigations and prosecutions, criminal or civil. In fiscal year 2016, 132 organizations were sentenced (129 pleaded guilty; only three went to trial); however, according to the U.S. Sentencing Commission, only 2.1% of organizations seeking acceptance of responsibility credit under U.S. Sentencing Guideline § 8C2.5 had an “effective” compliance program. See U.S. Sentencing Commission Sourcebook at Tables 53, 54 (2016).

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