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What Viable Criminal Charges Against D&B Did The DOJ Actually “Decline”?

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This prior post highlighted the SEC’s $9.2 million Foreign Corrupt Practices Act enforcement action against Dun & Bradstreet based on the conduct of two indirect Chinese subsidiaries from 6 to 12 years ago.

In connection with the SEC’s enforcement action, the DOJ quietly released this letter stating that it has “declined prosecution consistent with the FCPA Corporate Enforcement Policy.”

However, the question is posed: based on information in the public domain what viable criminal charges against D&B did the DOJ actually “decline”? The answer, as discussed in this post, appears to be none.

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Matt Miner’s (Deputy Assistant AG) Previous Writings On …

Miner

As highlighted in previous posts here, here, and here it is always interesting – when individuals go into or leave government service – to analyze what they have written about before or after their government stint.

Matt Miner recently became Deputy Assistant Attorney General in the DOJ’s criminal division and this post highlights his previous writings on topics now relevant to this job ranging from the “Yates Memo,” DOJ transparency, the deficiencies of DOJ guidance as a solution, and the FCPA’s “foreign official” element.

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Mum’s The Word From The DOJ As To The Compliance Counsel Position

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In November 2015, the DOJ announced that it had retained “Hui Chen as a full-time compliance expert” and that  “among her duties as a consulting expert, Chen will provide expert guidance to Fraud Section prosecutors as they consider the enumerated factors in the United States Attorneys’ Manual concerning the prosecution of business entities, including the existence and effectiveness of any compliance program that a company had in place at the time of the conduct giving rise to the prospect of criminal charges, and whether the corporation has taken meaningful remedial action, such as the implementation of new compliance measures to detect and prevent future wrongdoing.”

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DOJ “Enforcement” Has Become A Joke

dismal

Historically, the DOJ had two choices when a business organization was the subject of criminal scrutiny. The two choices — which have served as the foundation of the U.S. criminal justice system for nearly a century when corporate criminal liability was first recognized — was either charge the entity with a legal violation or not charge.

Yet as highlighted in this chronological post ending with DOJ statements last week, in recent years DOJ “enforcement” has become a joke. When reading the below chronology of events, recognize that the vast majority of them occurred long before the Trump administration.

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The Case That Keeps On Giving – DOJ Announces Additional Charges In PDVSA Bribery Action

PDVSA

Several prior posts (see here and here for instance) have highlighted the clustering phenomenon and how a few discreet instances of alleged bribery yield an inordinate amount of Foreign Corrupt Practices Act enforcement activity.

One such example is the DOJ’s long-standing enforcement action (charges were first brought in late 2015) in connection with alleged corrupt schemes to secure contracts from Venezuela’s state-owned and state-controlled energy company, PDVSA.

Yesterday, the DOJ announced that additional criminal charges were unsealed “against five former Venezuelan government officials for their alleged participation in an international money laundering scheme involving bribes made to corruptly secure energy contracts from Venezuela’s state-owned and state-controlled energy company, PDVSA.”

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