DOJ official hints at policy changes for off-channel communications, clawbacks

The Department of Justice (DOJ) is considering issuing new guidance regarding companies’ record-keeping obligations for employees’ use of personal cell phones to conduct corporate business, as well as executive compensation clawback policies.

Nicole Argentieri, acting principal deputy assistant attorney general in the DOJ’s Criminal Division, said in a speech Thursday at a Foreign Corrupt Practices Act (FCPA) conference in Washington, D.C. the agency is “examining whether additional guidance is necessary about the use of personal devices and third-party messaging applications, including those offering ephemeral messaging.”

Currently, the DOJ’s FCPA corporate enforcement policy prohibits “the improper destruction or deletion of business records” and requires “implementing appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms” for companies to receive full credit for timely and appropriate remediation.