by Brian R. Michael, Christine Y. Wong, Brian K. Kidd, and Nathaniel R. Mendell
Speaking at a Compliance Week event on May 17, 2022, Assistant Attorney General (“AAG”) Kenneth Polite reaffirmed that companies that “take compliance seriously” can expect a reduced likelihood that investigators will impose a compliance monitorship. Notably, Polite—himself a former Chief Compliance Officer (“CCO”)—told the audience that CCOs should have a “prominent role” in meetings with investigators, and that CCOs should have “true independence, authority, and stature,” with significant access and resources within the company. Polite cited several examples of actions companies can take to effectively demonstrate a commitment to compliance:
- Develop and maintain a strong compliance program.
- Compile a demonstrated track record of compliance program effectiveness.
- Choose a knowledgeable and impressive CCO.
- Give the CCO access and stature within the business.
- Put compliance officers front and center in presentations to DOJ
Polite’s remarks were his latest in a series of public statements emphasizing that the Department of Justice (“DOJ” or “Department”) scrutinizes not just the structure of compliance programs, but also leadership, resources, and performance when deciding whether to impose a monitor.
Key Takeaways
- Experienced CCOs who demonstrate knowledge and ownership of a company’s compliance program will play a pivotal role in DOJ’s decision whether or not to impose a monitorship.
- Compliance programs should be structured, supported, and promoted in a way that meaningfully influences company culture.
- DOJ will give significant credit where a company has documented when and how its compliance program effectively detected and prevented violations.
- Outside counsel with relevant compliance and enforcement experience can provide valuable assistance to companies in crafting and enhancing successful compliance programs and preparing CCOs for a more prominent role in meetings with investigators.