Over this series we have explored what companies can do both internally and externally to incorporate the Benczkowski Memo (the “Memo”) and other DOJ guidance into their organizations. In Episode 4, Eric Feldman and I discuss how the DOJ Guidance from 2018 on FCPA compliance can be used as both a sword and a shield.  The first thing to recognize is that while laying out the criteria for monitor selection by the DOJ, the Benczkowski Memo also lays out a roadmap of how to avoid a monitor. The Benczkowski Memo lays  out several conditions to indicate a situation where a monitor is warranted. The first includes whether the underlying misconduct involved something as systemic as manipulation of corporate books and records or exploitation. If it does this may well be indicia that a company had an inadequate compliance program. This would further indicate that the corporate compliance program is not designed and implemented effectively. The second factor considers whether the misconduct was pervasive across the organization or approved or facilitated by senior level management.
For more information on Affiliated Monitors, visit their website at www.affiliatedmonitors.com.