There were reports last week that the DOJ is hiring a compliance expert. He or she will help evaluate whether to charge corporations that fail to detect and prevent wrongdoing by employees.
The compliance expert will review whether the target company had a robust compliance program or one that was window dressing — or something in between.
A candidate has been reportedly offered the position and is undergoing the background check process.
The position is in the DOJ’s criminal division, which prosecutes health care, securities, and FCPA violations, among others.
This development apparently won’t directly affect the antitrust division, which sometimes has policies different from the criminal division.
There have been a couple of small steps already toward crediting compliance programs in charging decisions and enforcement actions.
The antitrust division earlier this year gave credit in a plea agreement to a target company, Barclays Bank, for a compliance program. And in 2012, the DOJ said it credited Morgan Stanley’s compliance program in a decision not to bring an enforcement action the company for FCPA violations in China.
Those were good initial steps.
The DOJ’s hiring of a compliance expert is a much bigger and more important step in recognizing the value of compliance programs.
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Robert Connolly served for 33 years as a trial attorney in the DOJ’s antitrust division, including as chief of the Philadelphia field office from 1994 until 2013. He practices law with DC-based GeyerGorey LLP, which focuses on antitrust and other white-collar criminal defense work. He’s the founder and lead writer of CartelCapers, where a version of this post first appeared.
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