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Once Again The DOJ Shoots Itself In The Foot

shootingselffoot

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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Deputy AG Rosenstein On Compliance

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I’m sure Deputy Attorney General Rod Rosenstein does more than just give speeches, but lately (well he actually addressed this in his speech).

Earlier today, Rosenstein delivered this speech at Compliance Week and this post excerpts the speech.

Rosenstein stated: “When a company creates and fosters a culture of compliance, it creates value. Compliance is an investment. Ethical, law-abiding companies can better attract investors and partners. People want to do business with companies that they perceive as honest and reliable.”

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

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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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Deputy AG Rosenstein On …

rosenstein

Last Thursday was a big speech day for Deputy Attorney General Rod Rosenstein. In addition to announcing a new non-binding DOJ policy on “coordination of corporate resolution penalties,” (see here and here for prior posts) Rosenstein also appeared at an FCPA conference and delivered this speech (continuing the disgraceful practice of for-profit conference firms using our public officials to drive attendance to their paid events).

Rosenstein’s speech was in part duplicative of his earlier “piling on” speech, but this post highlights Rosenstein’s general statements on the FCPA, foreign law enforcement cooperation, and the DOJ’s recent so-called declination.

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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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