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FCPA Flash – A Conversation With Leslie Caldwell (Former Ass’t AG, DOJ Criminal Division) About The DOJ’s New “FCPA Corporate Enforcement Policy”

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Leslie Caldwell. Caldwell is currently partner in the San Francisco and Silicon Valley offices of Latham & Watkins and previously served as the Assistant Attorney General of the DOJ’s Criminal Division. In this role, Caldwell was involved in implementing and promoting the DOJ’s April 2016 FCPA Pilot Program.

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Statement On The DOJ’s New “Revised FCPA Corporate Enforcement Policy.”

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As highlighted in this previous post, earlier today Deputy Attorney General Rod Rosenstein announced that the DOJ issued a new “revised FCPA corproate enforcement policy.” (See here for the actual policy in the U.S. Attorneys’ Manual).

The following statement may be attributed to Professor Koehler.

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DOJ Announces A “Revised FCPA Corporate Enforcement Policy”

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One of the best things ever written about the FCPA was penned nearly 35 years ago by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

Earlier today, the Foreign Corrupt Practices Act space once again witnessed a government of individuals rather than law as the DOJ announced yet another non-binding FCPA enforcement policy document.

Several forthcoming posts will examine in greater detail the “revised FCPA corporate enforcement policy”, but for now set forth below are the relevant portions of Deputy Attorney General Rod Rosenstein’s speech. (See here for the actual new policy in the U.S. Attorneys’ Manual. Note: the new policy is 9-47.120, the other FCPA portions in the USAM have been there for years).

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FCPA Flash – A Conversation With Joseph Spinelli Regarding Risk Assessments and Compliance

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Joseph Spinelli (Senior Managing Director at Kroll). During the podcast, Spinelli discusses: risk assessments; the role various business personnel besides legal can play in FCPA compliance; and the use of technology in third party compliance.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

DOJ’s McFadden And Sessions Nicely Articulate The Policy Rationale For An FCPA Compliance Defense

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As highlighted in the article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” the value and efficacy of an FCPA compliance defense is not just limited to more just and fair results when it comes to “hard enforcement” of the FCPA by the DOJ and SEC.

More importantly, an FCPA compliance defense will also increase “soft enforcement” of the FCPA. Soft enforcement generally refers to a law’s ability to facilitate self-policing and compliance to a greater degree than can be accomplished through “hard” enforcement alone.

Stated differently, the goal of the FCPA is to prevent bribery of foreign officials and that goal is best accomplished not solely through ad hoc “hard” enforcement actions, but by also better incentivizing corporate compliance designed to prevent improper conduct. Numerous prior posts (here, here, herehere, here, here, here, here, here, here, here) have highlighted this dynamic including how the DOJ has long recognized the importance of “soft enforcement” of the FCPA.

In recent speeches, DOJ Deputy Attorney General Trevor McFadden (as well as Attorney General Jeff Sessions) nicely articulated the policy rationale for an FCPA compliance defense. However, actions speak louder than words and the DOJ (and SEC) have continually failed to support the best positive incentivize to maximize “soft” enforcement of the FCPA.

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