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U.S. Department of Justice Announces Revised FCPA Corporate Enforcement Policy

In a move to incentivize “ethical corporate behavior,” the Department of Justice has announced a revised Foreign Corrupt Practices Act Corporate Enforcement Policy. The new policy formalizes the DOJ’s 2016 Pilot Program that was designed to encourage companies to voluntarily disclose FCPA-related misconduct by providing greater information about the benefits of such a disclosure. 

Specifically, the new policy creates a presumption that the DOJ will decline to bring enforcement actions when a corporation self-discloses, fully cooperates, remediates any misconduct and disgorges any unlawful profits. Previously, under the Pilot Program, a declination was merely an option for the DOJ to exercise; now such a declination is mandatory under specific circumstances. However, this presumption exists only where there are no aggravating circumstances that would make a declination inappropriate. Examples of aggravating circumstances include, for example, significant profit to the company from the misconduct, involvement of the company’s executive management in the misconduct, and criminal recidivism.

Additionally, even if aggravating circumstances exist, a company may still find some reprieve under the new policy. In these circumstances, the new policy requires the DOJ to recommend a 50 percent reduction off the low end of the Sentencing Guidelines fine range. Similarly, where a company fully cooperates and timely and appropriately remediates, but does not voluntarily self-disclose, the company will be eligible for a 25 percent reduction off the low end of the Sentencing Guidelines fine range.

Finally, the new policy defines the scope of the “deconfliction” of internal investigations – that is, a request from the DOJ for companies to defer interviewing their employee witnesses until after the government has had an opportunity to do so. While the Pilot Program introduced the idea of deconfliction, the new policy outlines specific limitations to such a request, including that it be limited in duration and narrowly tailored to a legitimate investigative purpose.

It should be noted that while the new policy provides greater transparency regarding the DOJ’s decision-making process with respect to the FCPA, there are no guarantees. The policy preserves a measure of prosecutorial discretion and makes clear that it does not create any enforceable rights in a court of law.

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About this Author

Dan Collins, White Collar Criminal Defense Attorney, Drinker Biddle, law firm
Partner

Dan Collins is a partner in the firm’s Commercial Litigation Practice Group and a member of the White Collar Criminal Defense & Corporate Investigations Team.  Dan is an experienced trial attorney, having tried more than 20 cases to verdict in criminal and civil proceedings in both federal and state court.  As a former federal prosecutor, Dan is well-positioned to advise corporate and individual clients in responding to government inquiries, conducting internal investigations and handling other complex litigation matters.

312-569-1358
Charles Leeper, Litigator with Drinker Biddle, Corporate Investigations attorney
Partner

Charles S. Leeper is head of the firm’s White Collar Criminal Defense and Corporate Investigations Team and serves as a Managing Partner of the Firm. His practice focuses on the defense of white collar criminal investigations and prosecutions, congressional inquiries and related civil proceedings.

Charlie previously served as an Assistant U.S. Attorney for the District of Columbia, where he investigated and prosecuted an array of complex cases involving white collar offenses, public corruption, asset forfeiture, espionage and terrorism. Charlie also supervised a team of other veteran prosecutors in his capacity as Deputy Chief of the Special Prosecutions Unit.

202-842-8877
Associate

Isabelle E. Kountz focuses her practice on matters related to complex commercial litigation, insurance litigation, and government investigations.

Isabelle has represented clients in federal and state litigation, as well as in government investigations and enforcement actions by the United States Department of Justice, the Securities and Exchange Commission, and other regulatory bodies. She has also assisted clients with internal investigations and compliance strategies.

Isabelle has experience drafting and arguing...

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