Vedder Price

Companies should carefully review the DOJ’s recent policy changes and evaluate whether and how they can revise their compliance infrastructure to best position themselves should misconduct be discovered within the company. The following takeaways should be given due consideration:

• Developing a robust compliance program that proactively identifies, investigates and remediates potential wrongdoing prior to government involvement will significantly increase the likelihood of a declination of prosecution.
• Once wrongdoing is discovered, companies should move quickly and work with counsel to determine if voluntary self-disclosure is appropriate. Given the ambiguity in how the DOJ interprets “immediate” disclosure, a company that decides to self-disclose would be best served by doing so as soon as possible. 
• Companies should examine their compensation structures to determine whether and how to implement procedures to claw back compensation from employees who engage in wrongdoing. In doing so, companies should consult counsel to weigh the benefits of potentially obtaining a more favorable resolution from the DOJ against the risks of costly litigation stemming from attempts to claw back compensation.  
• The government’s increased attention to personal devices and the use of mobile messaging applications such as standard text messaging, WhatsApp, or Signal should prompt companies to review and revise their policies to specifically address the parameters of business communications that occur on such platforms. Companies should further determine their capabilities to access and preserve any such communications. Failure to do so may well have an adverse impact on a company’s ability to obtain a favorable resolution from the DOJ.