DOJ Confirms, Once Again, That Compliance Plans Really Do Matter

by Moore & Van Allen PLLC

Moore & Van Allen Litigation Member Scott Schools is serving as a contributor.  Schools' article below initially published on on March 31.

DOJ Confirms, Once Again, That Compliance Plans Really Do Matter

On Thursday, March 20, 2014, Acting Assistant Attorney General Mythili Raman confirmed an inescapable truth regarding both corporate governance and white collar defense—compliance plans matter.  In a speech to a Global Anti-corruption Compliance Conference, Ms. Raman, who was on her last day as head of the Criminal Division of the Department of Justice (DOJ), told the audience, “[W]hen companies fail to implement or enforce robust compliance programs, and they then violate the law, we will not hesitate to hold them – and their executives – to account.” .

Ms. Raman’s remark reflects an emerging reality about the DOJ’s view of when to seek corporate criminal responsibility for corporations whose employees engage in criminal conduct.  That reality was reflected in a response that Paul Fishman, the United States Attorney for the District of New Jersey, provided on a panel at the 28th Annual National Institute on White Collar Crime in mid-March.  When asked how his office evaluated the appropriate treatment for health care providers who have violated the law, he narrowed the evaluation down to two essential considerations—what did the corporation do to prevent the violation and what did the corporation do to respond to it?  Mr. Fishman was not purporting to re-write Section 9-28.300 of the United States Attorney’s Manual (USAM) that sets forth nine elements that prosecutors are to consider in determining when to hold a corporation criminally responsible for the acts of its employees.  He merely cut to the chase confirming what many prosecutors are thinking:  in the event of a violation, companies with robust compliance programs deserve (and should expect to receive) credit for their prior preventative actions.

Despite the seeming contradiction of obtaining “credit” for a compliance plan that has, by definition, failed, DOJ policy and the federal sentencing guidelines specifically allow for such credit. See USAM §§ 9-28.300.A.5 and 9-28.800 and USSG § 8B2.1.  In order to obtain credit for pre-violation compliance efforts, compliance plans must be in place, current, and followed.   Indeed, the government seems to expect compliance programs to be not just current but prescient because DOJ prosecutors—and other agency regulators for that matter–often identify conduct as “bad” before the industry has, see e.g. the stock options backdating investigations and prosecutions in the late 2000s.  In short, the best compliance officials are always on the lookout for “the next big thing.”  Of course, having a plan in place is only the beginning.  DOJ’s central theme in reviewing a compliance plan will always be sincerity, that is “whether corporate management is enforcing the program or is tacitly encouraging or pressuring employees to engage in misconduct to achieve business objectives.”  USAM § 9-28.800.B.

Whether or not a corporation can tout its pre-violation compliance effort, it will have a chance with DOJ or regulators to demonstrate its commitment to compliance through its post-violation response.  Among the factors DOJ will consider is whether the corporation has sanctioned violators, enhanced compliance efforts, paid restitution, and cooperated with investigators.  USAM § 9-28.300. Because DOJ expects full cooperation and has clear visibility of those efforts, the extent and tone of the cooperation will often color DOJ’s perception of the sincerity of the corporation’s post-violation response.  However, all of the cited factors will be important, and the presence or absence of them will weigh in DOJ’s determination of whether to seek a sanction against the corporation in the form of prosecution or a deferred or non-prosecution agreement that may include monetary payments and possible future oversight by a corporate monitor.

Ultimately, the government’s most frequently cited metric of success for holding corporations accountable is the amount of dollars it brings in the door from the exercise of its prosecutorial or regulatory powers.  In 2013, the DOJ reported over $3.8 billion in settlements and judgments from civil cases involving fraud against the government.  And the beat goes on.  Just since March 11, 2014, DOJ has announced settlements of $8.5 million, $27.6 million, $85 million, $1.2 million, and $1.2 billion. DOJ’s emphasis on the relevance of pre-violation compliance plans together with its pursuit of high dollar resolutions are intended to send a clear message that the government will hold companies to account for failing to enforce robust compliance programs.  In short, compliance is here to stay, and those corporations that fail to maintain robust compliance plans will face greater likelihood of violations, stiffer monetary settlements, and uphill battles when seeking to avoid criminal liability for the conduct of their employees.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Moore & Van Allen PLLC | Attorney Advertising

Written by:

Moore & Van Allen PLLC

Moore & Van Allen PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.