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How DOJ Evaluates Compliance Programs Cheat Sheet by

flip     factors     compliance     doj     evaluations     programs     prosecution

Introd­uction

The "­Pri­nciples of Federal Prosec­ution of Business Organi­zat­ion­s" in the U.S. Attorney's Manual sets out the so-called "­Filip Factor­s" for use in deciding whether or not to bring charges or in negoti­ating plea or other types of agreem­ents.

This differs from, and is in addition to the OIG's review of compliance programs to determine whether or not a corporate integrity agreement or certif­icate of compliance should be imposed

Eleven broad categories are examined. The sub-points indicate more detailed analysis within the category.

1. Analysis & Remedi­ation of Underlying Misconduct

Includes root cause analysis, prior indica­tions of miscon­duct; remedi­ation pursued by the organi­zation.

2. Senior and Middle Manage­ment.

Includes an analysis of the conduct by senior leaders, indica­tions of commitment to compliance and commun­ication of the commit­ment, quality of oversight by the governing body.

3. Autonomy and Resources

What was the role of compliance in decisi­on-­making, control and training functions related to the miscon­duct, what is the stature of the compliance role compared to other functions in the organi­zation, are compliance personnel qualified and experi­enced, does the compliance officer have sufficient autonomy to carry out necessary functions; is funding of the compliance function adequate.

4. Policies and Procedures

Includes analysis of the process for designing and reviewing compliance policies, are policies adequate and fully implem­ented and enforced, is there effective training on policies, are policies well-c­omm­uni­cated, are policies extended to vendors.

5. Risk Assessment

What processes are used to identify risk areas, what inform­ation or metrics are used to detect miscon­duct.
 

6. Training and Commun­ica­tions

What training is provided and to whom, is the training effective, has it been measured, how does the organi­zation commun­icate remedi­ation of miscon­duct, what resources are available to provide guidance to employees about compliance

7. Confid­ential Reporting and Invest­igation

Inquiry into the processes, analyses and follow-up steps when compliance issues are reported, are invest­iga­tions properly conducted by trained personnel, how does the organi­zation respond to the results of invest­iga­tions.

8. Incentives and Discip­linary Measures

What discip­linary actions were taken as a result of invest­iga­tions of miscon­duct, who partic­ipated in the discip­linary process, are discip­linary actions fairly and consis­tently applied across the organi­zation and at all levels of the organi­zation, how has the organi­zation incent­ivized compliance and ethical behavior.

9. Continuous Improv­ement

Periodic Testing & Review. How and what does the organi­zation audit in terms of compliance issues, how are audits reported and addressed, is the audit program itself reviewed and evaluated, do audit results inform policy and procedure updates.

10. Third Party Management

Are there third-­party managers involved in the organi­zation, are there approp­riate controls over third party managers.

11. Mergers and Acquis­ition

M&A. Does the due diligence process identify possible miscon­duct, how has the compliance function been integrated into the merger, acquis­ition, and integr­ation process

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