The Department of Justice (DOJ) recently confirmed the importance of implementing a robust compliance programme that is not only well designed, but also adaptable and able to function effectively. The DOJ's latest guidance makes clear that companies have a strong incentive to maintain an effective compliance programme. Most importantly, these programmes must be fully implemented, account for the structure and scope of a company's business and actually operate effectively.
Government attorneys now have additional discretion in False Claims Act civil cases to award cooperation credit to a corporation that meaningfully assists the investigation without necessarily identifying every individual person outside of senior management involved in the alleged misconduct. The new policy reflects the reality of modern corporate investigations and encourages realistic cooperation efforts without compromising the Department of Justice's policy of holding individuals accountable.
In the past, compliance and remediation in the context of healthcare investigations were typically seen as afterthoughts. However, compliance efforts are now being more closely scrutinised by prosecutors. The Department of Justice recently issued an 11-part series of questions styled as guidance on corporate compliance programmes. Interestingly, it is a series of questions, not a series of answers. Companies are going to have to work the answers out themselves with their compliance departments and counsel.