Justice Department Seeking Additional Incentives for Compliance Efforts, Official Says

Murray, speaking at the 2019 Compliance Week’s annual conference on May 20, covered a range of compliance topics, saying the Justice Department is considering hiring more prosecutors with corporate compliance experience, and de-emphasizing the importance of compliance guides. She also said DOJ, specifically the Antitrust Division, wants to more effectively incentivize companies who put effort into their compliance programs. “We are not simply talking about crediting extraordinary prospective compliance measures,” she said. “There is more that we could do to incentivize companies that aren’t doing the extraordinary, but are still investing in proactive compliance programs.”

While Murray did not specifically list incentives DOJ is pursuing, she said “leniency” in prosecution should not be the only reward for effective compliance programs and said there should be more incentives for “good corporate citizenship.” She said DOJ is looking to expand the scope of which compliance programs can receive rewards to incentivize “efforts to deter and detect misconduct” even if those efforts “were not fully successful.” She did not say when the agency will be announcing those incentives. "Stay tuned on this front," she said. "There is more to come."

Murray, who is entering her third week in her current role with the Justice Department, also said she is considering hiring prosecutors with “in-house compliance experience” to result in “more fair and just resolutions.” She said she will make those decisions after meeting with DOJ litigators in coming weeks. “I will ask them to evaluate whether their staffs would be more effective if they worked to recruit at least some prosecutors with in-house compliance experience,” she said, adding that DOJ will be holding “targeted training” in 2019 to better understand the nuances of compliance programs. “The department does not see compliance as one-size-fits-all,” Murray said. “We don’t have a rigid formula.”

Murray also said compliance guides issued by government agencies are not comprehensive documents and urged companies to follow government laws instead of depending on agency guidance. She said she has noticed a tendency by agencies to use the guides -- which she called “subregulatory” -- as a “short-cut when they should be undertaking notice-and-comment rulemaking” instead. “Subregulatory guidance isn’t law -- it’s just paper,” she said.

But Murray did say compliance guides can be useful, specifically in “evidentiary contexts,” where government prosecutors can point to publicly available compliance guides as justification for prosecution of certain compliance violators. An example of a guide that may fall under this category was published on May 2, when the Treasury Department’s Office of Foreign Assets Control issued a 12-page compliance guide that may make it easier for DOJ to successfully prosecute compliance cases (see 1905030055).

But while compliance guides may be used for prosecution, Murray said they cannot be the prosecutor’s sole justification. Justice Department litigators may not “treat a party’s noncompliance with a guidance document as itself a violation,” Murray said, because “guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation.” Murray said companies need to ensure their compliance programs are “consistent” only with the parts of guides that apply to binding laws. “For everything else,” she said, “that’s where you make a good faith risk calculation … about whether to follow an agency’s subregulatory guidance, which may be persuasive, or whether to take another lawful approach that differs from the guidance.”