美国司法部如何激励企业进行合规投资？
If a company has a strong compliance program, it should be given special consideration, says Matt Miner, the deputy assistant attorney general overseeing the Justice Department's criminal division. PHOTO: U.S. JUSTICE DEPARTMENT
The U.S. Justice Department in recent years has expanded beyond its primary mission—to investigate and prosecute—into a role that’s more about explaining what measures companies can take to avoid criminal investigations in the first place.
The department has created special programs and guidance designed to encourage companies to build systems that prevent employees from paying bribes or committing other crimes. It has also trained prosecutors on the intricacies of corporate compliance, and how to tell if a company’s program is the real deal.
Yet some chief compliance officers are still skeptical that the Justice Department has the expertise or resources to meaningfully assess the work they do—or a genuine interest in crediting companies for it if they run afoul of the law.
Matt Miner, a deputy assistant attorney general overseeing the department’s criminal division, wants to convince them otherwise. He spoke to Dow Jones Risk & Compliance Journal about how the Justice Department is incentivizing companies to invest in compliance, and why those that do should be given special consideration.
On how the Justice Department can overcome skepticism in the corporate community that it is serious about corporate compliance.
“It is a legitimate concern from the [white-collar] bar, and in particular the corporate community, that a compliance program will be evaluated with perfect 20-20 hindsight—with an eye on the misconduct, and then thinking the compliance program didn’t work,” Mr. Miner said.
“We’ve messaged that internally to say that that’s not the standard,” he said. “It can’t be that the single worst actor in a corporation that is otherwise 99.9% filled with compliant employees with a compliant culture and a strong program,” is the sole basis for a criminal prosecution, Mr. Miner said.
“We’ve tried to convey that as strongly as possible,” he said. “We want the companies to invest in remedial compliance measures and to talk about those when they come in and present, about how far they’ve come based upon the lessons learned.”
It’s critical that prosecutors assess a company’s compliance at the time a violation occurred and at the time it reaches a settlement with the Justice Department, Mr. Miner said. “If a program flagged the misconduct and allowed the corporation to investigate and remediate, and—under our self-disclosure program—self-disclose, that would weigh very, very heavily in favor of mitigating [the severity of the] resolution, relative to the aggravators of the misconduct,” he said.
On remediation, and how it can help a company avoid a monitor.
The work a company does after discovering misconduct—known as remediation—is also important, Mr. Miner said. If a company does a root-cause analysis, figures out where the compliance gaps are and trains employees about how to prevent future issues, they will be given credit in their resolution with the Justice Department, he said.
Remediation, Mr. Miner said, is key to avoiding a monitor—an independent third party the Justice Department requires a company to hire to oversee compliance reforms after a settlement. “If you find something and you invest in remediation based upon what you found—whether you voluntarily self-disclose or we come knocking later—we’re likely not going to impose a monitor,” he said.
On how prosecutors are taught to approach compliance holistically.
Chief compliance officers have to design a program that addresses a wide range of risks. Prosecutors need to be cognizant of how the compliance program works as a whole, Mr. Miner said.
“We tried to bring home to our prosecutors the range of components of a compliance program, and that the compliance program is more than the compliance department,” Mr. Miner said. “So that when they sit down and they engage in an evaluation of the adequacy and the effectiveness of a compliance program, they are doing so with a level of greater sophistication and appreciation of the challenges that a compliance program faces.”
“All of that is aimed at trying to avoid an after-the-fact decision that a compliance program was de facto inadequate because something bad happened,” he said.
On whether the criminal division would ever hire another compliance consultant.
The Justice Department in 2015 hired its first compliance consultant, who helped advise the agency on how to assess corporate compliance programs. The consultant left in 2017, and officials have said there are no plans to replace her. Mr. Miner said he preferred to hire staff attorneys who have compliance experience from working at a law firm or company.
“One of the things that we also would be glad to do at some point is find somebody who has an in-house background to come in and be a trial attorney—working some cases, but also imparting that expertise to others—just to build the general bench strength on compliance,” Mr. Miner said.
On how companies are using data to strengthen their compliance programs.
More companies are sampling or monitoring transactional data to look for anomalies or red flags associated with bribery or corruption, Mr. Miner said. But using data can come with its own risks.
“There’s always this sense of, ‘Well, if we find something and we go to the department, we will have this cascade of risks,’” said Mr. Miner.
The Justice Department is trying to contain that risk as much as possible, he said. It released an anti-piling-on policy to limit redundant penalties that can occur when law enforcement agencies and regulators in multiple countries are investigating a company for the same misconduct. It also issued inability-to-pay guidance to make clear that if an impending fine poses an existential threat to a company, prosecutors will take that into account.
“The last thing we want is for companies to feel like they should not be investing in compliance and improved controls because they may find something,” Mr. Miner said. “That would be like having a health-care system that encourages people not to go to the doctor.”
On how to know that the Justice Department is following its own guidance.
The Justice Department has to make clear through its resolutions—in public charging documents or settlement agreements—when and why a company was rewarded for creating a strong compliance program, Mr. Miner said. “If we don’t do that, the policies will ring hollow,” he said.
Ultimately, compliance should be treated as a “super mitigator,” Mr. Miner said—meaning if a company has a strong compliance program, it should be given special consideration. The Justice Department is looking for cases where it can send that message, he said.
Dylan Tokar
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