In a recent client alert, we explored the U.S. Department of Justice’s (“DOJ”) June 2020 update to its guidance on Evaluation of Corporate Compliance Programs (the “DOJ Guidance”).

In this series of posts, our Africa Anti-Corruption Practice will be focusing on the key takeaways from the DOJ Guidance through the lens of companies operating in Africa, starting with a foundational question: Why does guidance issued by U.S. law enforcement authorities matter to companies operating in Africa?

Strictly speaking, the DOJ Guidance does not “require” anything of companies, regardless of where they are headquartered, incorporated, or operate. Even for U.S. companies, the DOJ Guidance is not a prescriptive regulation with the force of law. Rather, it is a guidance document that is “meant to assist [U.S.] prosecutors in making informed decisions as to whether, and to what extent, [a] corporation’s compliance program was effective at the time of [an] offense, and is effective at the time of a charging decision or resolution.” This evaluation by prosecutors can impact various aspects of a DOJ enforcement action, including the form of resolution (e.g., guilty plea vs. deferred prosecution agreement), the monetary penalty imposed, and other compliance-related obligations imposed in a settlement (e.g., self-reporting requirements or independent compliance monitorships).

Although the DOJ Guidance is on the surface intended as guidance for prosecutors, DOJ is undoubtedly speaking to a corporate audience as well. By providing the framework under which U.S. prosecutors evaluate compliance programs, the DOJ Guidance provides an “answer key” of sorts, allowing companies to test the effectiveness of their compliance programs before they come under the scrutiny of prosecutors.

For companies operating in Africa that have the most significant exposure to U.S. law (e.g., affiliates or partners of U.S.-headquartered or U.S.-listed companies), the reasons for heeding the DOJ Guidance are obvious – the DOJ Guidance will provide the “rules of the game” in the event that the company finds itself defending its compliance program before DOJ.

For companies with less meaningful ties to the U.S., which may face less significant risks of prosecution under U.S. law, the DOJ Guidance is still highly relevant for several reasons:

1 — The DOJ Guidance Reflects International Best Practice and Provides a Useful Evaluative Framework for Compliance Programs

The DOJ Guidance is by no means the only guidance that companies should consider in designing, implementing, and evaluating their compliance programs, and companies are well served by considering other sources of guidance that may be relevant to their programs. That said, the DOJ Guidance is largely reflective of emerging international best practice, regardless of the particular legal exposure that a company operating in Africa may face. Indeed, many other sources of compliance program guidance echo best practice that U.S. authorities have articulated and refined over the past several years based on their experience investigating and prosecuting hundreds of foreign bribery and other economic crime cases.

We have also found the DOJ Guidance to be among the most detailed and user-friendly sources of guidance in this area, particularly when read together with enforcement precedents. By focusing on three pillars: (1) program design; (2) implementation, resourcing, and empowerment; and (3) practical effectiveness, the DOJ Guidance provides a useful evaluative framework that should help companies better organize program assessment and enhancement exercises, and explain those steps to business stakeholders. We have found that the DOJ Guidance can be fairly easily translated into a series of questions in different program areas to enable a program assessment.

2 — The DOJ Guidance May Provide the Standards by Which A Company’s Program is Judged by Business Partners and Other Stakeholders

As we have previously discussed in a post outlining the business case for investing in compliance programs, separate from satisfying the expectations of enforcement authorities, having an effective compliance program that meets international standards can help to drive commercial success, including by giving companies a competitive advantage in interactions with key stakeholders such as customers, business partners, and investors. That is particularly true where such stakeholders are themselves subject to U.S. law and have mature compliance programs built around U.S. standards.

In the procurement context, for example, many of our clients evaluate the strength of their suppliers’ compliance programs alongside traditional commercial criteria such as price and quality of services. In addition, lenders and investors are increasingly factoring compliance considerations into their decision-making processes. Finally, in an environment where issues such as sustainability and human rights are driving consumer and employee choices, companies should be prepared for integrity issues to become increasingly relevant to consumers and employees, who may “vote with their feet” if they are unsatisfied with a company’s commitment to compliance. Being able to demonstrate that a company has a compliance program consistent with the DOJ Guidance can often go some way in satisfying such stakeholders.

3 — The Reach of U.S. Law and Increasing Enforcement Activity in Europe and Africa

Finally, given the potential reach of U.S. law (which in some circumstances can be triggered by fleeting connections to the U.S., such as correspondent bank transactions flowing through U.S. financial institutions), it is difficult for a company operating in Africa to completely insulate itself from exposure to violations of U.S. law. In the event that a company finds itself in a DOJ investigation, its compliance program will be judged by the standards set forth in the DOJ Guidance regardless of whether the company is headquartered, incorporated, or listed in the United States.

Along similar lines, with increasing enforcement activity by authorities in Europe and Africa, a company that builds its compliance program around the DOJ Guidance and similar sources of international best practice guidance will be better positioned to engage with such authorities.














Photo of Benjamin Haley Benjamin Haley

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the…

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the ground across the continent, he helps clients assess and mitigate complex legal and compliance risks in Africa and other emerging markets.

Complementing his investigations and dispute resolution practice, Ben has a broad-based compliance advisory practice, helping clients proactively manage compliance risk in areas including anti-corruption, anti-money laundering, fraud, and data privacy.

Ben represents corporate and individuals clients in a wide range of investigations and disputes, including:

  • Investigations under the U.S. Foreign Corrupt Practices Act (“FCPA”).
  • Investigations into anti-money laundering, financial crimes, anti-terrorism, and international trade controls issues.
  • Securities fraud and accounting matters.
  • Board investigations and shareholder litigation.
  • Insurance recovery.

Ben also regularly advises clients on a range of regulatory compliance and corporate governance issues. His compliance advisory practice includes:

  • Performing risk and compliance program assessments.
  • Leading compliance reviews on business partners and assisting companies with third-party risk management processes.
  • Conducting forensic accounting reviews and testing and enhancing financial controls.
  • Advising on market entry, cross-border transactions, and pre-acquisition diligence and post-acquisition integration.
  • Assisting companies in designing, implementing, and maintaining best-in-class compliance programs.

In recent years, Ben has steered a number of clients to successful resolutions and declinations in complex FCPA and corporate fraud matters with the U.S. Department of Justice and Securities Exchange Commission. In his advisory practice, Ben has served as lead compliance counsel on a number of major M&A transactions. He has developed special expertise assisting clients in leveraging technology in their compliance programs, including assisting one of the world’s largest consumer goods companies in the design and implementation of an award-winning compliance data analytics and monitoring system.

Ben has been described by the Chief Compliance Officer of one of his clients as “[a]n outstanding senior lawyer and advisor,” and “a guiding light for all things compliance advisory in Africa,” whose “advice is crystal clear, covers all angles and is business friendly.”

Photo of Sarah Bishop Sarah Bishop

Sarah Bishop advises companies on compliance best practices and enforcement risks arising under the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, U.S. and UK anti-money laundering laws, and other financial crime laws. Qualified in the United States and as a Solicitor…

Sarah Bishop advises companies on compliance best practices and enforcement risks arising under the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, U.S. and UK anti-money laundering laws, and other financial crime laws. Qualified in the United States and as a Solicitor of England & Wales, she is able to help companies navigate risks arising in both jurisdictions. She also has experience of other anti-corruption laws (e.g., France’s Loi Sapin II) and works with trusted local partners to deliver coordinated advice that takes into account the requirements of multiple legal regimes. Sarah’s compliance advisory practice includes helping multinational corporations develop and test the robustness of compliance programs, conduct risk assessments, conduct transactional and third party due diligence, navigate post-acquisition compliance integration projects, and deliver compliance training.

As a member of Covington’s Business and Human Rights practice group, Sarah advises companies on evolving developments and best practices related to the corporate responsibility to respect human rights, including in relation to supply chain due diligence and responsible sourcing, reporting and transparency obligations, and strategies for integrating human rights elements into existing compliance programs.

Sarah also helps clients navigate internal and government-facing investigations involving allegations of bribery and corruption, money laundering, export control and sanctions violations, fraud, and other forms of misconduct. She has handled matters before major international enforcement authorities, and she has been recognized by the Global Investigations Review as being among the leading women investigations practitioners worldwide. In addition to government enforcement matters, Sarah assists clients in suspension and debarment matters before the World Bank and other international financial institutions.