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Deputy Assistant Attorney General Matthew Miner On ….

miner

Recently Deputy Assistant Attorney General Matthew Miner delivered this speech at an American Bar Association event in Prague.

During the speech, Miner touched upon international cooperation; the DOJ’s so-called “no piling on” policy; the DOJ’s “Evaluation of Corporate Compliance Programs” guidance document; gathering evidence in foreign countries; voluntary disclosure, cooperation and so-called declinations; and enforcement actions against foreign companies.

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Friday Roundup

Roundup

Whistleblower award, interesting observations, scrutiny update, why in the world, you lose some and you win some, and guilty plea. It’s all here in the Friday roundup.

Whistleblower Award

According to this report, “a former Brazilian surgeon who blew the whistle on a medical device company that allegedly bribed doctors to win business will get a $4.5 million award from U.S. regulators, according to his lawyers. The surgeon will get the money for playing a crucial role in helping the SEC uncover a bribery scandal at Biomet Inc. that spanned the globe. (See here for the SEC release).

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Principal Deputy Associate Attorney General – “Subregulatory Guidance Isn’t Law – It’s Just Paper”

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This previous post discussing the DOJ’s recent release of a non-binding guidance document titled “The Evaluation of Corporate Compliance Programs” (ECCP) noted that the ECCP is not a legal document that establishes liability for non-compliance. In other words, if compliance professionals and others strive to have a compliance program that exceeds statutory requirements that is great, but it is not legally required. (See also this recent FCPA Flash podcast episode discussing related concepts as well as here).

Earlier this week new Principal Deputy Associate Attorney General Claire McCusker Murray (pictured) delivered this speech in which she touches upon similar issues and made the spot-on observation that “subregulatory guidance isn’t law – it’s just paper.”

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FCPA Flash Podcast – A Conversation With Ryan McConnell Regarding The DOJ’s “Evaluation Of Corporate Compliance Programs” Policy Document

Podcast Logo

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 Ryan McConnell (a former federal prosecutor and founder of the boutique Houston law firm R. McConnell Group). The focus of the podcast is the DOJ’s recent release of a policy document titled “Evaluation of Corporate Compliance Programs” (see here and here for prior posts) and during the podcast McConnell responds to the following questions: (i) whether the business community deserves more stability rather than ever-changing DOJ guidance; (ii) how the recent guidance is not really an update, but more of a consolidation” of prior guidance and thus generally a yawner; (iii) why the word “effective” is so prominently mentioned in the guidance; and (iv) how business organization compliance with the guidance should be measured.

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Things That Caught My Eye In The DOJ’s Evaluation Of Corporate Compliance Programs Guidance Document

caughteye

This prior post went in-depth into the DOJ’s recently released “Evaluation of Corporate Compliance Programs” (ECCP) guidance document. This post continues the analysis by highlighting additional issues in the ECCP that caught my eye

For starters, there is nothing “wrong” with the ECCP per se. In fact, it is a nicely written and organized document. Substantively however, the ECCP uses the word “effective” 49 times, but there is no legal requirement that business organizations have “effective” compliance programs.

If a business organization wants to exceed the statutory standards set forth in the FCPA’s internal controls provisions (“controls sufficient to provide reasonable assurances” that certain objective are met) that is great! However, the legal and policy concern with the ECCP is that in an official U.S. government document the DOJ says it is going to base decisions about prosecutions and form of resolutions, monetary penalties, and compliance obligations in corporate criminal resolutions on specific factors, most of which, are not even found in any law passed by Congress.

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