On Feb. 8, the Fraud Section of the Department of Justice (DOJ) publicized new guidance, titled “Evaluation of Corporate Compliance Programs.” The guidance sets forth sample questions prosecutors may ask when evaluating a company’s compliance program in the context of a criminal investigation. This document is the latest direction released under the Fraud Section’s “compliance initiative,” which began when the Fraud Section hired Hui Chen as a full-time compliance expert in November 2015. This guidance provides insights into how the DOJ will assess the effectiveness of a company’s overall compliance program, with a specific focus on how the program will be viewed in the context of the underlying misconduct identified. See http://www.sidley.com/news/2017-02-21_fcpa_update.
As we previously discussed here, the government’s continued payment despite knowledge of contractual or regulatory noncompliance has become a powerful defense argument post-Escobar. The Fourth Circuit recently affirmed summary judgment in favor of government contractors after they obtained declarations from responsible government officials that undercut the relator’s theories of liability. See United States ex rel. Searle v. DRS C3 & Aviation Co., No. 15-2442 (4th Cir. Feb. 23, 2017).