At this year’s IMPACT conference, ECI was honored to be joined by the Honorable Brian Benczkowski, Assistant Attorney General for the Department of Justice’s Criminal Division.
Benczkowski delivered a keynote address where he announced the release of an updated DoJ guidance that effects how the Department analyzes organizations’ ethics & compliance programs.
After delivering his remarks, Benczkowski sat down with ECI CEO Pat Harned for a one-on-one interview where he discussed the DoJ’s policies on corporate monitors, the construction of the new guidance updates and more.
Here are a few of the highlights from this informative Q&A.
What are some of the differences in the evaluation process in the new guidance?
In his remarks, Benczkowski mentioned that the new guidance would be based on three key questions:
1) Is the program well-designed?
2) Is the program effectively implemented?
3) Does the compliance program actually work in practice?
The new guidance then defines how prosecutors will address those questions in analyzing an E&C program. “It [the new guidance] walks through all the way to the end a framework for analyzing, from a prosecutors perspective, the compliance program that they see in front of them. Recognizing that we anaylze compliance programs both at the the time of the misconduct and at the time of the resolution… and then in the middle hopefully positive evolution,” Benczkowski said.
Is the Department open to feedback from the industry on the guidance?
Benczkowski remarked that transparency is key to receiving feedback for the continuous improvement of the guidance. “I don’t have any illusion that we have all the answers to these questions, so we are certainly open to feedback both informally… and we may even want to do something more formal where we get feedback from experts who will take the time to read the documents and think about it and give us positive or constructive feedback about what we could do better,” said Benczkowski.
How does this new guidance fit with the policy related to use of monitors?
Benczkowski said that the new guidance is instrumental in determining whether a corporate monitor will need to be installed. “In order to decide whether a monitor is appropriate, what the scope of that monitorship looks like and what the duration of that monitor ship should be as part of a corporate resolution, you need to make a thorough and well thought through and reasoned and fair assessment of the company’s current compliance program,” Benczkowski said.