Recently on the FCPA Blog, Professor Andy Spalding touted his article “Restoring Pre-Existing Compliance Through the FCPA Pilot Program.”
I’ve previously wrote about the DOJ’s FCPA Pilot Program in April 2016 soon after it was released (see here for the article “Grading the DOJ’s FCPA Pilot Program”) and am no big fan of the Program for the reasons discussed in the article.
Moreover, as highlighted in this prior post, given the DOJ’s self-described “principal goal” of the Program – that is “to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self disclose FCPA-related misconduct,” the Program has been an utter failure in that the DOJ has self-identified seven corporate matters as being resolved pursuant to / or consistent with the Pilot Program: (Nortek, Akamai Technologies, Johnson Controls, HMT LLC, NCH Corp, Linde Gas, and CDM Smith), yet none of these matters (zero, zilch, nada) have involved related prosecution of individuals.
In any event, the apparent thesis of Spalding’s article seems to be that the Pilot Program is step back from prior FCPA guidance such as the 2012 FCPA Guidance because the Pilot Program is silent regarding pre-existing compliance. However, any reasonably informed FCPA practitioner will recognize upon reading the full article that this apparent thesis is based on a fallacy.