Your board’s audit committee will want to review new compliance guidance provided in a recent speech by assistant attorney general Leslie Caldwell, chief of the U.S. Department of Justice’s Criminal Division. It coincided with the DOJ’s announcement of the appointment of a “compliance counsel” to advise prosecutors as they consider whether a corporation maintained a good-faith compliance program at the time of any conduct giving rise to the prospect of charges. The guidance was presented as metrics that the new counsel will apply when evaluating programs for effectiveness.
Both the guidance and the appointment are consistent with the DOJ’s renewed commitment to criminal and civil fraud enforcement, and its intent to be more transparent about how prosecution and related decisions are made. These are all matters with which the audit committee (or some other board committee charged with compliance oversight) should be concerned. They’re all consistent with the board’s obligations under the seminal In re Caremark International Derivative Litigation decision to create and maintain a corporate reporting/compliance program.
