When can a corporation’s compliance program help stave off indictment? Or at least secure it more lenient treatment from the Department of Justice when resolving a case? DOJ has given fresh guidance on this issue for our clients, signaling what we see as a new emphasis in evaluating corporate compliance. That guidance came in October 7, 2014 remarks by Marshall L. Miller, the Criminal Division’s Principal Deputy Assistant Attorney General (PDAAG).

DOJ bases its corporate charging and resolution decisions on the Principles of Federal Prosecution in the U.S. Attorneys’ Manual, and specifically on the nine so-called Filip factors the Manual lists. Filip factor 5 advises companies that DOJ considers “the existence and effectiveness of the corporation’s pre-existing compliance program” in evaluating whether to indict a company or give it a break in a resolution. And the Manual has long warned that “prosecutors may consider whether the corporation has established corporate governance mechanisms that can effectively detect and prevent misconduct.” USAM 9-28.800. But there was little formal indication of what things DOJ deems most critical in assessing corporate compliance programs when making charging decisions. Until now.