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And The Apple Goes To …


Debevoise & Plimpton’s FCPA Update is consistently one of the best periodic Foreign Corrupt Practices Act publications around.

The most recent issue contains a dandy article by Andrew Levine, Bruce Yannett, Philip Rohlik which focuses on the DOJ’s recent so-called declinations.

For not believing the hype regarding the DOJ’s so-called declinations – as several FCPA commentators have – but rather analyzing the salient question posed by the so-called “declinations,” the Debevoise authors are awarded the FCPA Apple Award which recognizes informed, candid, and fresh thought-leadership on the Foreign Corrupt Practices Act or related topics.

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


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


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?


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?


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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