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The Impracticality of the New DOJ Policies

This great article by Billy in FCPA Blog is consistent with similar pieces authored by myself and other members of the white collar bar. Although the DOJ's recently announced policies appear to be intended to incentivize good corporate governance by requiring policies around the use and preservation of third-party messaging applications and personal devices, as well as the inclusion of clawback provisions in executive compensation agreements, it will likely have the opposite effect.

Today, our corporate clients operate in a highly-competitive global market, with the biggest threats to their growth coming from foreign competitors. These new policies are not only out of step with how business is conducted today, but it may have the unintended effect of adversely impacting the growth of U.S.-based businesses and disincentivizing cooperation.

But, in pursuing one policy that is virtually unenforceable and another that will be used rarely, if at all, the Criminal Division may be chasing some platonic ideal of compliance which will come at a cost to the more important, everyday essentials of compliance. In this case, the perfect may well be the enemy of the good.


corporate governance