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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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DOJ Announces Non-Binding Policy Discouraging “Piling On” Regarding Corporate Resolution Penalties

piling

Yesterday, 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.”

While this represents a new DOJ non-binding policy, the concept of “piling on” has been talked about for quite some time including by Obama administration enforcement officials. (See prior FCPA Professor coverage herehere and here). This includes in the FCPA context going back to the FCPA reform hearings in 2011 (see here for the prior post) – a concept that has long been termed “double-dipping” on these pages (see here). (See here for an FCPA Flash Podcast on the subject with David Bitkower (former Principal Deputy Assistant Attorney General).

The DOJ’s new policy is general in nature, not FCPA specific, but portions of it are FCPA relevant and a future post will analyze the new policy in the context of FCPA enforcement. For now, this post excerpts Rosenstein’s speech and sets forth the policy.

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FCPA Relevant – Deputy AG Rosenstein’s Concern About Multiple Law Enforcement And Regulatory Agencies Pursing A Single Entity For The Same Conduct

doubledip2

In a recent speech, Deputy Attorney General Rod Rosenstein stated:

“One concern is about multiple law enforcement and regulatory agencies pursuing a single entity for the same or substantially similar conduct. Some refer to this as the “piling on” problem. When a company engages in wrongdoing, we should enforce the law and punish the wrongdoer.  That is fair and just. But repeated punishment for the same conduct has the potential to undermine the spirit of fair play and the rule of law.  Multiple punishments can also deprive a company, as well as its employees, customers, and investors, of the benefits of certainty and finality ordinarily available through a full and final settlement. This is why the Department is committed to making a concerted effort to apportion penalties among both international and domestic agencies, where appropriate.”

As highlighted in this post, Rosenstein’s concern is relevant to Foreign Corrupt Practices Act enforcement.

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