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FCPA Flash – A Conversation With Alice Fisher Regarding DOJ FCPA Enforcement And 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 Alice Fisher (Latham & Watkins and former Assistant Attorney General in charge of the DOJ’s Criminal Division). During the podcast, Fisher discusses: the DOJ’s recent non-binding policy discouraging “piling on”;  the DOJ’s FCPA Opinion Procedure program in light of her 2006 comments as Assistant AG that the program should “be something that is useful as a guide to business”; whether the DOJ’s long-standing efforts to encourage voluntary disclosure have failed (for instance in the same above-linked speech Fisher stated: “I can tell you [companies] in unequivocal terms that you will get a real benefit” for voluntary disclosure; whether FCPA enforcement (in terms of resolution vehicles, enforcement theories, DOJ/SEC policy, etc.) has evolved for the better or the worse since her time at the DOJ; and what about the FCPA (the actual statute) or FCPA enforcement (DOJ/SEC enforcement policy, resolution vehicles, etc.) should change and why.

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DOJ “Piles On” Société Générale And Other Issues To Consider

piling

As highlighted in this prior post, in May the DOJ announced a non-binding policy discouraging “piling on” by instructing DOJ “components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”

This prior post discussed how discouraging “piling on” sounds great, but it all depends on what “piling on” means.

Specifically, one area in which the DOJ’s policy is FCPA relevant is due to the transnational nature of alleged FCPA violations against foreign companies which may be subject to U.S. law enforcement and foreign law enforcement as well.

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Friday Roundup

Roundup

“Piling on” roundup, from the docket, across the pond, complete lack of perspective, scrutiny alert, say what, and for the reading stack. It’s all here in the Friday roundup.

“Piling On” Roundup

FCPA Professor has provided the most extensive, real time coverage and commentary of the DOJ’s recent so-called “piling on” policy. See prior posts here, here and here.

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Business Organizations Should Not Take The DOJ’s Latest Voluntary Disclosure Bait

takebait

The DOJ’s efforts to entice business organizations to voluntarily disclose (in the Foreign Corrupt Practices Act context and otherwise) stretches back approximately 15 years (see this prior post collecting various DOJ speeches going back to 2004).

Fast forward to 2012, then it was the FCPA Guidance which sought to entice business organizations to voluntarily disclose by, among other things, highlighting six “anonymized examples of matters DOJ and SEC have declined to pursue” where a common thread was voluntary disclosure.

In April 2016, it was the DOJ’s pilot program, an effort – in the words of the DOJ –  to “encourage voluntary corporate self-disclosure.”

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Discouraging “Piling On” Sounds Great, But It All Depends What “Piling On” Means

piling

As highlighted in yesterday’s post, DOJ Deputy Attorney General Rod Rosenstein announced a non-binding policy discouraging “piling on” by instructing DOJ “components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”

The DOJ’s new policy is general in nature, not FCPA specific, but portions of it are FCPA relevant and this post analyzes the new policy in the context of FCPA enforcement. In short, discouraging “piling on” sounds great, but it all depends what “piling on” means.

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