For the Defense - Vol. 4, Issue 3 - 18
on a company's governing authorities, analyzing the
conduct of senior leadership, and how individuals in
these positions encourage or discourage compliance.10
The Guide instructs prosecutors to specifically probe
into whether "a compliance program is a 'paper
program' or if it is one 'implemented, reviewed, and
revised, as appropriate, in an effective manner.'"11
And prosecutors are also tasked with investigating
the qualifications of compliance and control
personnel, which requires assessing the experience
and responsibilities of such employees.12
Prosecutors are directed to especially consider the
company's culture of compliance and whether the
company has an outward stance that misconduct
will not be tolerated.13 To that end, the Guide
points prosecutors towards the human resources
department, and advises prosecutors to ask questions
regarding the decisionmakers in disciplinary actions,
consistency in the application of disciplinary action,
and what is actually communicated to the employees
about disciplinary actions.14 It urges prosecutors
to evaluate the company's disciplinary framework
and assess its overall effectiveness.15 The Guide also
18
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Vol. 4, Issue 3
mentions the effect of publicizing disciplinary
actions internally-which has proven deterrent
effects.16 It also advises prosecutors to review any
incentive structure in which employees are rewarded
or promoted for demonstrating ethical leadership.
Again, defense counsel should consider these same
points in advising clients about their compliance
programs, whether those programs are first being
established or whether they are being evaluated
after they have already been established.
The DOJ recognizes the difficulty in assessing the
effectiveness of a corporate compliance program
in practice-nevertheless, that is the third question
prosecutors must examine. In fact, the most difficult
question for prosecutors to answer is whether the
compliance program was working effectively at the
time of the offense.17 The Guide sets forth various
points to consider when answering this third and
final question, including whether there is continuous
improvement, periodic testing, and review of the
compliance program; whether misconduct within
the corporation is investigated; and whether that
underlying misconduct is analyzed and remediated.18
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For the Defense - Vol. 4, Issue 3
Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3
Contents
For the Defense - Vol. 4, Issue 3 - 1
For the Defense - Vol. 4, Issue 3 - 2
For the Defense - Vol. 4, Issue 3 - Contents
For the Defense - Vol. 4, Issue 3 - 4
For the Defense - Vol. 4, Issue 3 - 5
For the Defense - Vol. 4, Issue 3 - 6
For the Defense - Vol. 4, Issue 3 - 7
For the Defense - Vol. 4, Issue 3 - 8
For the Defense - Vol. 4, Issue 3 - 9
For the Defense - Vol. 4, Issue 3 - 10
For the Defense - Vol. 4, Issue 3 - 11
For the Defense - Vol. 4, Issue 3 - 12
For the Defense - Vol. 4, Issue 3 - 13
For the Defense - Vol. 4, Issue 3 - 14
For the Defense - Vol. 4, Issue 3 - 15
For the Defense - Vol. 4, Issue 3 - 16
For the Defense - Vol. 4, Issue 3 - 17
For the Defense - Vol. 4, Issue 3 - 18
For the Defense - Vol. 4, Issue 3 - 19
For the Defense - Vol. 4, Issue 3 - 20
For the Defense - Vol. 4, Issue 3 - 21
For the Defense - Vol. 4, Issue 3 - 22
For the Defense - Vol. 4, Issue 3 - 23
For the Defense - Vol. 4, Issue 3 - 24
For the Defense - Vol. 4, Issue 3 - 25
For the Defense - Vol. 4, Issue 3 - 26
For the Defense - Vol. 4, Issue 3 - 27
For the Defense - Vol. 4, Issue 3 - 28
For the Defense - Vol. 4, Issue 3 - 29
For the Defense - Vol. 4, Issue 3 - 30
For the Defense - Vol. 4, Issue 3 - 31
For the Defense - Vol. 4, Issue 3 - 32
For the Defense - Vol. 4, Issue 3 - 33
For the Defense - Vol. 4, Issue 3 - 34
For the Defense - Vol. 4, Issue 3 - 35
For the Defense - Vol. 4, Issue 3 - 36
For the Defense - Vol. 4, Issue 3 - 37
For the Defense - Vol. 4, Issue 3 - 38
For the Defense - Vol. 4, Issue 3 - 39
For the Defense - Vol. 4, Issue 3 - 40
For the Defense - Vol. 4, Issue 3 - 41
For the Defense - Vol. 4, Issue 3 - 42
For the Defense - Vol. 4, Issue 3 - 43
For the Defense - Vol. 4, Issue 3 - 44
For the Defense - Vol. 4, Issue 3 - 45
For the Defense - Vol. 4, Issue 3 - 46
For the Defense - Vol. 4, Issue 3 - 47
For the Defense - Vol. 4, Issue 3 - 48
For the Defense - Vol. 4, Issue 3 - 49
For the Defense - Vol. 4, Issue 3 - 50
For the Defense - Vol. 4, Issue 3 - 51
For the Defense - Vol. 4, Issue 3 - 52
For the Defense - Vol. 4, Issue 3 - 53
For the Defense - Vol. 4, Issue 3 - 54
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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