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On February 9, 2016, Andrew Weissmann, the head of DOJ’s Fraud Section, provided an informative keynote speech at a conference sponsored by the Global Investigation Review in Washington, D.C. Below is a summary of some of the main topics addressed.
List of compliance questions. Weissmann said that the DOJ will publish in the next weeks a list of questions that companies can expect to be asked when being assessed by the DOJ’s new compliance consultant. Weissmann explained that some questions may not apply in certain cases and others may be asked as well. Weissmann previewed the list, highlighting four specific categories of questions DOJ will ask:
- What does a low level employee think/know about the compliance function?
- What kind of compliance messages are being sent to employees down the line?
- What are management and the board doing in terms of compliance?
- How are management and the board implementing compliance and ethics?
- What is management and the board looking at in terms of compliance?
- Are employees who commit misconduct being disciplined or fired?
- Is responsibility for compliance shared with the business units, or is it concentrated at the compliance function?
- Do compliance personnel have the right expertise?
- Do compliance personnel have the right background for the tasks they are being assigned?
- Does compliance have adequate resources?
Efforts to increase transparency. Weissmann highlighted that DOJ is making efforts to increase transparency related to the outcome of cases. He said that the public should anticipate that greater specific detail will be provided in upcoming resolutions about how certain amounts were reached and specifics about each element that was taken into consideration in that determination.
More information about declinations. The decision to conclude an investigation without an enforcement action – commonly referred to as a “declination” – is not usually publicized by the DOJ. Because of this, it has been difficult for companies not only to know how frequently declinations occur and what circumstances justifies a declination. Weissmann said that the DOJ will shed more light on declination decisions in the short term, publishing related data with aggregate information.
One-year goal for resolutions when companies self-disclose. Weissmann stated that DOJ will make an effort to complete cases for companies that self-report within one year. He acknowledged that, in many cases, especially in those where relevant documentation and witnesses are overseas, it will be difficult to complete the case within this timeframe. But he said that DOJ is still working to avoid “never-end proceedings”.
Hybrid monitorships. Weissmann highlighted that trainings on how to work with compliance monitors are being provided to prosecutors, and he said that the DOJ’s new compliance consultant will be working closely with prosecutors to do this. He also said that DOJ’s new compliance consultant is evaluating whether a hybrid monitorship system, with 18 months of monitorship by an external monitor followed by a self-monitorship period, is a sufficient approach.
Increased collaboration with counterparts. Weissmann said that DOJ is working more frequently with foreign counterparts, not only in FCPA cases, but also in securities and cybersecurity cases. He mentioned Brazil, Indonesia, the United Kingdom, and Germany as a few examples of countries in which the DOJ has been working closely. Furthermore, he said that in December 2015, DOJ held a symposium with the British Financial Conduct Authority and the Serious Fraud Office to work on legal issues that arise frequently during cooperation, such as how to use cooperation witnesses and proffers. Finally, he also emphasized that there has been more coordination on the penalty phase not only without the U.S. but also outside the U.S., suggesting that allocation of responsibility between countries is also taking place.
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