There are multiple areas in the DOJ’s 2019 Guidance which intersect with the area of continuous improvement. They include the following:

 Prior Indications – Were there prior opportunities to detect the misconduct in question, such as audit reports identifying relevant control failures or allegations, complaints, or investigations?  What is the company’s analysis of why such opportunities were missed? 

Remediation – What specific changes has the company made to reduce the risk that the same or similar issues will not occur in the future?  What specific remediation has addressed the issues identified in the root cause and missed opportunity analysis? 

This ties to the 2012 FCPA Guidance, which made clear that compliance audits, with actionable remediation plans, are a key component of any effective compliance program. Another way to do achieve these multiple and intersecting goals is through proactive monitoring. Proactive monitoring is an excellent technique through which a company can engage in continuous improvement. Nonetheless, it has many other benefits including regulatory and evidence in a criminal investigation if needed under anti-corruption laws such as the FCPA. The bottom line is that all those scenarios might justify a company to engage a proactive monitorship to come in and do a complete ethics.

 Three key takeaways:

  1. A proactive monitorship can be reactive proactivity to look at a specific issue…
  2. …or used to test a compliance program…
  3. …or used in a variety of legal and business manners.