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The DOJ’s Latest FCPA Rhetoric Doesn’t Even Pass The Smell Test

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Speeches by Foreign Corrupt Practices Act enforcement officials have long included over-the-top rhetoric. (See this article for a general summary).

This recent post highlighted a speech by DOJ Deputy Assistant Attorney General Matthew Miner. In the speech, Miner stated that when a company voluntarily discloses FCPA issues and engages in remedial actions, this frees up DOJ resources and “these resources can then be directed to other cases, not only in the FCPA context, but also to other areas such as opioid enforcement, human trafficking, and crimes impacting vulnerable victims, like children and the elderly.”

The DOJ’s latest FCPA rhetoric does not even pass the smell test and set forth below are various reactions to this portion of Miner’s speech from FCPA practitioners.

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A Game Of Cat And Mouse

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The DOJ has long talked about how “greater transparency benefits everyone” (see here).

In this May 2017 speech, a high-ranking DOJ official talked about “the importance of transparency in our anti-corruption prosecutions.”

In this August 2017 speech, a high-ranking DOJ official stated: “We are taking additional steps to enhance our enforcement of the FCPA against both corporate and individual actors, and to promote transparency in doing so.”

In announcing its November 2017 FCPA Corporate Enforcement Policy (see here) the DOJ talked about greater “clarity about our decision-making process” and the “advantage of the policy for businesses is to provide transparency about the benefits available if they satisfy the requirements.”

Against this backdrop, if the DOJ is truly committed to transparency and clarity in the FCPA context, why does it continue to play cat and mouse games with the business community about terms and conditions it uses in describing its own enforcement policies?

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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’s FCPA Unit Chief Refuses To Answer Various Factual Questions Regarding FCPA Enforcement

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For years, I have tried to engage with Foreign Corrupt Practices Act enforcement officials and the consistent response has been no – even though such officials routinely speak at FCPA conferences (usually paid events runs by for profit companies) and routinely grant interview requests.

This is disappointing given that U.K. law enforcement officials have long engaged with me on bribery and corruption topics (see here, here, here and here among other posts).

After listening to this recent podcast in which DOJ FCPA Unit Chief Daniel Kahn speaks about a variety of FCPA issues, I invited Mr. Kahn to be a guest on the FCPA Flash podcast and was invited to submit questions. I submitted the below questions – mostly fact-based and statistically driven – yet the response I received from the DOJ press office was “Dan Kahn respectfully declines interview.”

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Once Again The DOJ Shoots Itself In The Foot

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This is the fourth time this general post has appeared on these pages (see here, here and here for prior posts).

So here it goes again.

The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. Why then does the DOJ continually make decisions that should result in any board member, audit committee member, or general counsel informed of current event not making the decision to voluntarily disclose?

The recent Societe Generale enforcement action (see here and here for prior posts) is just the latest example.

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