DOJ Scrutinizing Compliance With Revised Evaluation Criteria, Lawyer Says

DOJ has been looking closely at companies’ approaches to communications platforms since revising its corporate compliance program criteria earlier this year, Caitrin McKiernan, a Steptoe lawyer, said during a webinar hosted by the firm last week. She said she’s working with multiple clients in assessing their compliance programs to make sure they meet the new standards set by DOJ in March, which could affect whether the agency offers to resolve an investigation without criminal charges (see 2303030056).

At least one former official said the DOJ changes, which could require companies to better track employee communications on personal devices and chat apps, are “virtually unenforceable” (see 2304050081). A compliance industry official disagreed, saying compliance departments are “well-poised” to handle DOJ’s increased expectations during criminal investigations, including surrounding Foreign Corrupt Practices Act violations (see 2304240019).

McKiernan suggested companies concentrating on meeting the new criteria amid heightened scrutiny from DOJ and the SEC. “We're seeing this in our dealings with agencies,” she said, adding that the government wants to know “about ephemeral messaging and personal devices, just generally.”

Officials also want to know whether a company maintains policies “on the use of ephemeral messaging and personal devices for business communications,” she said, or allows employees to “conduct business on personal devices or ephemeral messaging apps and delete the info or don't provide it to the company.”

Companies “obviously” don’t “want to be in that situation,” McKiernan said. She said she’s working with clients to “conduct proactive compliance risk assessments and to develop tailored policies that really address” issues surrounding messaging on personal devices. “This is a topic that gets and will continue to get scrutiny in the context of the DOJ and the SEC,” she said.

She also noted that there hasn’t yet been an uptick in FCPA enforcement this year, despite speculation actions would increase (see 2305160039). But McKiernan said that doesn’t mean the Biden administration isn’t pursuing FCPA cases. “FCPA enforcement actions are often the culmination of multiyear investigations,” she said. “So the enforcement actions relating to Biden administration priorities might not be clear or public for years to come.”