Top Menu

Mum’s The Word As The DOJ Declines To Provide Clarity About The “Aggravating Circumstances” In Its New FCPA Corporate Enforcement Policy

mouthshut

The DOJ’s new “FCPA Corporate Enforcement Policy” states:

“When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated … there will be a presumption that the company will receive a declination [subject to a requirement to pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct] absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.  Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”

Continue Reading

Deputy AG Rosenstein Assumes Causation In Calling The FCPA Pilot Program “Successful”

Assume

As long as there have been government programs, government officials have been inclined to proclaim the program a success.

For instance, last week in announcing the DOJ’s new “FCPA Corporate Enforcement Policy, Deputy Attorney General Rod Rosenstein stated:  “The incentive system set forth in the Department’s FCPA Pilot Program motivates and rewards companies that want to do the right thing and voluntarily disclose misconduct. In the first year of the Pilot Program, the FCPA Unit received 22 voluntary disclosures, compared to 13 during the previous year.  In total, during the year and a half that the Pilot Program was in effect, the FCPA Unit received 30 voluntary disclosures, compared to 18 during the previous 18‑month period.”

As highlighted in this post, Rosenstein’s statement assumes causation – in other words that the supposed increase in voluntary disclosures was the result of the April 2016 Pilot Program.

Continue Reading

Statement On The DOJ’s New “Revised FCPA Corporate Enforcement Policy.”

Soapbox

As highlighted in this previous post, earlier today Deputy Attorney General Rod Rosenstein announced that the DOJ issued a new “revised FCPA corproate enforcement policy.” (See here for the actual policy in the U.S. Attorneys’ Manual).

The following statement may be attributed to Professor Koehler.

Continue Reading

DOJ Announces A “Revised FCPA Corporate Enforcement Policy”

Justice Dept

One of the best things ever written about the FCPA was penned nearly 35 years ago by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

Earlier today, the Foreign Corrupt Practices Act space once again witnessed a government of individuals rather than law as the DOJ announced yet another non-binding FCPA enforcement policy document.

Several forthcoming posts will examine in greater detail the “revised FCPA corporate enforcement policy”, but for now set forth below are the relevant portions of Deputy Attorney General Rod Rosenstein’s speech. (See here for the actual new policy in the U.S. Attorneys’ Manual. Note: the new policy is 9-47.120, the other FCPA portions in the USAM have been there for years).

Continue Reading

SEC Co-Director Of Enforcement Peikin Reflects On The Past, Present, And Future Of The SEC’s Enforcement Of The FCPA

Peikin

Earlier today, Steven Peikin (Co-Director of the SEC’s Enforcement Division) delivered this speech at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Peikn’s remarks.

But first a few comments.

In talking about the past, I wonder if Peikin is even aware of the following historical fact. As highlighted in the article “The Story of the Foreign Corrupt Practices Act,” the SEC never wanted any role in enforcing the FCPA’s anti-bribery provisions. However, congressional leaders at the time of the FCPA’s enactment had a high level of distrust with the Justice Department and insisted, against the SEC’s objections both when the FCPA was enacted in 1977 and when it was first amended in 1988, that it play a role in enforcing the FCPA’s anti-bribery provisions.

Continue Reading

Powered by WordPress. Designed by WooThemes