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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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Friday Roundup


Asset recovery, scrutiny alerts and updates, nominate, and for the reading stack. It’s all here in the Friday roundup.

Asset Recovery

FCPA enforcement is not the only prong of the DOJ’s bribery and corruption fight.

Asset recovery – part of the DOJ’s so-called Kleptocracy Initiative – is another prong and recently the DOJ announced its largest action ever brought under the program. As stated in this release:

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Criminal Books And Records And Internal Controls Enforcement Actions

books and records

I sometimes read certain FCPA commentators and just shake my head in disbelief. Does the author have any regard for facts and/or any interest in conducting basic research to discover the facts?

For instance, in this recent post a commentator states:

“Until now, the Justice Department has not brought a criminal circumvention of internal controls case. If the Justice Department brings such a case, it will be subject to scrutiny. The Justice Department has been very careful when conducting enforcement actions against individuals under the FCPA, and I am sure they will look for the “right set of facts” to bring such a precedent setting case. A criminal prosecution of internal controls and books and records violations will raise the stakes on the wisdom and applicability of the provisions. It is one thing to bring a civil action – it is quite another to bring a criminal action, especially against individuals for violating so-called internal rules and regulations.”

The notion that the DOJ has never brought a criminal enforcement action involving books and records and internal controls violations is just plain false.

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Must Read – Former Deputy Attorney General David Ogden’s Speech Criticizing The DOJ’s Leverage-Based Enforcement Approach

ogden 2

How many articles, speeches or commentary by former high-ranking DOJ officials does it take to realize that the DOJ is frequently misguided?

The latest former high-ranking DOJ official to criticize the DOJ’s current approach to investigating and resolving alleged legal violations by business organizations is David Ogden. Currently a partner at WilmerHale, Ogden previously was the DOJ Deputy Attorney General and prior to that a DOJ Assistant Attorney General.

Touching upon many of the same issues I have been writing about for years – from my 2010 article “The Facade of FCPA Enforcement,” to my 2010 Senate FCPA testimony, to my recent article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” in this recent speech Ogden criticizes the DOJ’s “leverage-based” enforcement approach.

The speech is a must read and is excerpted below. Tomorrow’s post will be an episode of the FCPA Flash podcast in which Ogden discusses various aspects of the speech.

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Denied By The DOJ


For purposes of this post, I invite you to stipulate two things.

First, FCPA Professor is a free, public website and a leading source of FCPA information that is widely read by a world-wide audience. Some might have difficulty stipulating to this, but the following is what others have said about FCPA Professor. FCPA Professor is the “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA,”  FCPA Professor is a Top Law Blog for in-house counsel by Corporate Counsel, a Top 25 Business Law Blog by LexisNexis, and a top 100 Legal Blog by the American Bar Association.

Second, DOJ FCPA officials routinely speak to on-line information sources on topics relevant to the Foreign Corrupt Practices Act and certain of these outlets often put the official’s comments behind a paywall.

Against this backdrop, this post highlights the DOJ’s long refusal to engage with FCPA Professor and frequent denial of FCPA Professor interview requests. Should DOJ officials engage with FCPA Professor? In posing this question, this post, among other things, shares the comments of a former high-ranking DOJ official on the question posed.

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