For the Defense - Vol. 4, Issue 3 - 19

Additionally, a hallmark of an effective compliance
program is its ability to change and adapt, so as
companies' businesses and risks change, DOJ will also
evaluate whether the subject company's compliance
efforts have evolved as well.19
The existence of misconduct alone does not
suggest a compliance program was ineffective.20
Rather, prosecutors are encouraged to consider if
and how the misconduct was detected, what was
done to investigate the alleged misconduct, and any
corrective action. Examples of relevant corrective
action include whether the company performed
a root cause analysis, or if it revised its policies to
address the misconduct.21 In other words, remedial
action, including disciplinary action against violators,
is an important consideration in a prosecutor's inquiry.
As prosecutors are directed to focus on the abovedescribed issues in answering the third question, so
should defense counsel who are advising clients about
their compliance programs.
In conclusion, while the updated Guide does not
include much new material, its new organization
provides clarity about how prosecutors should make
investigative and prosecutorial decisions regarding
corporate compliance programs. The Guide is thus
valuable for corporations seeking to understand the

criteria by which prosecutors will evaluate their
compliance programs. Defense counsel should,
therefore, review the Guide when creating and
implementing compliance programs as well when
reviewing compliance programs in place. The full
Guide is accessible at https://www.justice.gov/
criminal-fraud/page/file/937501.
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About the Authors
Lauren E. O'Donnell is a
partner in Blank Rome LLP's
Philadelphia office. She
regularly counsels clients
in white collar criminal
defense matters, internal
investigations, and healthcare
fraud and abuse. She also
regularly handles products
liability cases, defending companies that
design and manufacture medical devices and
pharmaceuticals, as well as chemical companies,
in federal and state litigation. She has been
named a "Pennsylvania Rising Star" (White Collar
Crimes) in Super Lawyers® from 2017-2019 and
listed as a 2018 "Lawyer on the Fast Track" in The
Legal Intelligencer. Contact her at ODonnell@
BlankRome.com
Caroline S. Choi is an
Associate in Blank Rome
LLP's Philadelphia office. She
concentrates her practice on
complex commercial litigation
matters and white-collar
investigations. Prior to joining
Blank Rome, Caroline was a
law clerk at the U.S. District
Court for the Eastern District of Pennsylvania.
Contact her at CChoi@BlankRome.com
Lauren and Caroline would like to thank Matthew
Treiber, a student at Fordham University School of
Law and a summer associate in Blank Rome LLP's
New York Office, for his assistance in drafting this
article.

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Vol. 4, Issue 3

For The Defense

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For the Defense - Vol. 4, Issue 3

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