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The DOJ’s Latest Voluntary Disclosure Guidance Is Absurd

absurd

Yet again, see here for a prior post, the Department of Justice recently revised its Foreign Corrupt Practices Act Corporate Enforcement Policy (CEP) – originally released in November 2017. (See here for the current version).

As highlighted below, while two of the three revisions make sense, the revision concerning voluntary disclosure is absurd.

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Assistant Attorney General Benczkowski Speaks On A Variety Of FCPA Topics

benczkowski

Earlier this week, Assistant Attorney General Brian Benczkowski delivered this speech at the FCPA’s annual dog and pony show (also know as the American Conference Institute’s FCPA conference).

As highlighted below, in the speech Benczkowski discussed individual and corporate enforcement, the DOJ’s Kleptocracy Asset Recovery Initiative, the recent trial in the Hoskins matters and agency issues, as well as DOJ policy.

Benczkowski began by noting the “remarkable prosecution activity and case developments in the FCPA space over the past year” and stated:

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Assistant Attorney General Benczkowski On Corporate Compliance And His Odd Use Of The Term “Deterrence”

benczkowski

Last week Assistant Attorney General Brian Benczkowski gave this speech at the 20th Annual Pharmaceutical and Medical Device Compliance Congress – an event frequently on the DOJ’s speech calendar.

As highlighted below, Benczkowski delivered typical Department of Justice corporate compliance talking points.

However, what stood out in his speech was his repeated odd use of the word “deterrence.”

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Attorney General Barr Discusses The DOJ’s Cooperation And Coordination With The SEC

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The Department of Justice and the Securities and Exchange Commission are separate law enforcement agencies.

However, in certain areas – including the Foreign Corrupt Practices Act – the law enforcement agencies often work together.

In this recent speech, Attorney General William Barr discussed the DOJ’s cooperation and coordination with the SEC.

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DOJ Releases Memo Titled “Evaluating A Business Organization’s Inability To Pay A Criminal Fine Or Criminal Monetary Penalty”

inabilitypay

Prior posts here and here highlighted several Foreign Corrupt Practices Act enforcement actions in which a company received a reduction in the settlement amount based on a claimed inability to pay. In certain instances, it appears as if the DOJ / SEC were duped (see here for example).

Thus, yesterday’s release of this non-binding DOJ policy memo titled “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty,” while not FCPA specific, is FCPA relevant.

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