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A Simple Common Sense Fix To Enhance The Credibility Of The DOJ’s So-Called “Declinations”

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The DOJ’s recent so-called “declinations” suffer from a credibility problem.

As highlighted in prior posts here and here, the salient question that should be asked in connection with the DOJ’s recent “declination” letters to Johnson Controls, Nortek and Akamai Technologies is what viable criminal charges did the DOJ actually decline? From the only information in the public domain (the SEC’s resolution documents in each matter) the answer appears to be none.

If the DOJ wants to enhance the credibility of its so-called “declinations,” there is a simple fix – a modest proposal first advanced on this page six years ago – long before the DOJ’s FCPA Pilot Program and long before the term “declination” became part of the FCPA vocabulary.

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Blowing The Whistle On Recent Commentary

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Pardon me for being that guy, but in the Foreign Corrupt Practices Act space someone needs to put on the stripes every now and then and blow the whistle.

This post does just that regarding certain recent “declination” commentary including the recent Johnson Controls enforcement action. For prior posts on the DOJ’s recent so-called “declinations” in the Nortek and Akamai see this post titled “Dont’ Believe the Hype, Rather Ask What Viable Criminal Charges Did the DOJ Actually Decline.” For prior posts on the Johnson Controls enforcement action see here, here, and here.

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Once Again, Don’t Believe The Hype – Rather Ask What Viable Criminal Charges Against Johnson Controls Did The DOJ Actually Decline?

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In its nearly 40 years of existence, there have been numerous SEC Foreign Corrupt Practices Act enforcement actions against issuers that did not also involve a DOJ component.

As highlighted below and also last month in this very similar post involving Nortek and Akamai Technologies, there is a simple reason for this. Not all civil SEC FCPA enforcement actions involve viable criminal charges against an issuer.

For most of the FCPA’s history, the DOJ never saw the need to highlight the FCPA cases it did not bring. But in April 2016 the DOJ announced its so-called FCPA “Pilot Program” and went into public relations marketing mode.

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Nortek / Akamai – Don’t Believe The Hype, Rather Ask What Viable Criminal Charges Did The DOJ Actually Decline?

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Earlier this week, at the same time the SEC announced non-prosecution agreements against Nortek and Akamai Technlogies (see here and here for prior posts), the DOJ released two “declination” letters involving the companies. [Note: the FCPA Blog’s assertion that the letters were “released by the companies and not by the DOJ” is false. The DOJ’s press office released the letters in an e-mail titled “Department Declination Letters for Akamai and Nortek FCPA Inquiries” on Tuesday, June 7th at 12:24 p.m.]

Before the expected flood of FCPA Inc. client alerts and commentary regurgitating the assertions in the DOJ letters and otherwise extoling the virtues of the DOJ’s FCPA Pilot Program, this post intervenes by posing the salient question – based on the information in the the public domain just what viable charges did the DOJ decline?

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Two For Tuesday In FCPA Enforcement Land – Akamai Technologies

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Just when you think you’ve seen all possible combinations of Foreign Corrupt Practices Act enforcement, along comes yesterday’s “two for Tuesday” in which the SEC announced in the same press release two non-prosecution agreements against two separate companies and the DOJ simultaneously released two so-called “declination” letters against the same two companies.

This post highlights the enforcement action against Akamai Technologies and today’s first post highlights the enforcement action against Nortek Inc.. From there future posts will highlight issues to consider from the enforcement actions (and there are many including the question of just what charges – based on the SEC’s statement of facts – did the DOJ actually decline?”).

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