New FCPA enforcement policy ‘codifies Pilot Program’
The US Department of Justice (‘DoJ’) is to take a new approach to enforcement of the Foreign Corrupt Practices Act (‘FCPA’), building on its Pilot Program, designed to encourage disclosure of potential violations.
Speaking to delegates at an international FCPA conference on 29 November, Deputy Attorney General Rod Rosenstein said the new policy is to hinge on three key elements:
‘First, the FCPA Corporate Enforcement Policy states that when a company satisfies the standards of voluntary self-disclosure, full cooperation, and timely and appropriate remediation, there will be a presumption that the Department will resolve the company’s case through a declination. That presumption may be overcome only if there are aggravating circumstances related to the nature and seriousness of the offense, or if the offender is a criminal recidivist.
‘Second, if a company voluntarily discloses wrongdoing and satisfies all other requirements, but aggravating circumstances compel an enforcement action, the Department will recommend a 50% reduction off the low end of the Sentencing Guidelines fine range. Here again, criminal recidivists may not be eligible for such credit. We want to provide an incentive for good conduct. And scrutiny of repeat visitors.
‘Third, the Policy provides details about how the Department evaluates an appropriate compliance program, which will vary depending on the size and resources of a business.’
Rosenstein added that the policy ‘specifies some of the hallmarks of an effective compliance and ethics program,’ amongst which are ‘fostering a culture of compliance,’ dedicating sufficient resources to compliance activities, and ensuring that ‘experienced compliance personnel have appropriate access to management and to the board.’
In commentary on the new policy, lawyers at Kirkland & Ellis note: ‘Most fundamentally, the new policy is codified in the U.S. Attorneys’ Manual, which removes any uncertainty over the continuity of the pilot program and sharpens the calculus for companies that are evaluating their options in the face of potential FCPA violations.’
And: https://www.justice.gov/criminal-fraud/file/838416/download
