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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.

©2018 Drinker Biddle & Reath LLP. All Rights Reserved


About this Author

Daniel Collins, White Collar Defense, Trial Attorney, Drinker Biddle

Daniel J. Collins represents companies, boards of directors, and senior executives in responding to government and regulatory inquiries, conducting internal investigations, and handling other complex litigation matters. He is an experienced trial attorney, having tried more than 25 cases to verdict in criminal and civil proceedings in both federal and state courts. Dan currently serves as a Managing Partner of the firm and co-chair of the firm’s White Collar Defense and Corporate Investigations practice.

Dan, a former federal prosecutor, has...

Charles Leeper, White crime defense lawyer, Drinker Biddle

Charles S. Leeper represents clients in white collar criminal investigations and prosecutions, congressional inquiries and related civil proceedings. He formerly served as the head of the firm’s White Collar Criminal Defense and Corporate Investigations Team and has served as a Managing Partner of the Firm.

Charlie has extensive experience defending companies and individuals against allegations of federal criminal violations and civil fraud offenses, including Foreign Corrupt Practices Act claims. He has litigated antitrust, environmental, securities, ethics and compliance and public contracts matters.

Isabelle Kountz, Litigation lawyer, Drinker Biddle

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...