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

takebait

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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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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Friday Roundup

Roundup

Motion to dismiss filed, guilty plea, role reversal, adequate procedures, for the reading stack, and viewing suggestion. It’s all here in the Friday roundup.

Motion to Dismiss Filed

As highlighted in this prior post, in November 2017 the DOJ announced that Chi Ping Patrick Ho (of Hong Kong, China) and Cheikh Gadio (of Senegal) were criminally charged with conspiring to violate the Foreign Corrupt Practices Act, violating the FCPA, conspiring to commit international money laundering, and committing international money laundering.

Earlier this week, Ho filed this motion to dismiss certain of the FCPA and money laundering charges.

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