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A Simple Common Sense Fix To Enhance The Credibility Of The DOJ’s So-Called “Declinations”


The DOJ’s recent so-called “declinations” suffer from a credibility problem.

As highlighted in prior posts here and here, the salient question that should be asked in connection with the DOJ’s recent “declination” letters to Johnson Controls, Nortek and Akamai Technologies is what viable criminal charges did the DOJ actually decline? From the only information in the public domain (the SEC’s resolution documents in each matter) the answer appears to be none.

If the DOJ wants to enhance the credibility of its so-called “declinations,” there is a simple fix – a modest proposal first advanced on this page six years ago – long before the DOJ’s FCPA Pilot Program and long before the term “declination” became part of the FCPA vocabulary.

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Friday Roundup


Asset recovery, scrutiny alerts and updates, nominate, and for the reading stack. It’s all here in the Friday roundup.

Asset Recovery

FCPA enforcement is not the only prong of the DOJ’s bribery and corruption fight.

Asset recovery – part of the DOJ’s so-called Kleptocracy Initiative – is another prong and recently the DOJ announced its largest action ever brought under the program. As stated in this release:

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Must Read – Former Deputy Attorney General David Ogden’s Speech Criticizing The DOJ’s Leverage-Based Enforcement Approach

ogden 2

How many articles, speeches or commentary by former high-ranking DOJ officials does it take to realize that the DOJ is frequently misguided?

The latest former high-ranking DOJ official to criticize the DOJ’s current approach to investigating and resolving alleged legal violations by business organizations is David Ogden. Currently a partner at WilmerHale, Ogden previously was the DOJ Deputy Attorney General and prior to that a DOJ Assistant Attorney General.

Touching upon many of the same issues I have been writing about for years – from my 2010 article “The Facade of FCPA Enforcement,” to my 2010 Senate FCPA testimony, to my recent article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” in this recent speech Ogden criticizes the DOJ’s “leverage-based” enforcement approach.

The speech is a must read and is excerpted below. Tomorrow’s post will be an episode of the FCPA Flash podcast in which Ogden discusses various aspects of the speech.

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Former Deputy AG Larry Thompson Blasts DOJ Policies


Few people have encountered the corporate criminal law enforcement (including in the FCPA context) and compliance from three vantage points: enforcer, in-house counsel, and lawyer in private practice. Larry Thompson is one of them having served as DOJ Deputy Attorney General, a lawyer in private practice, and a general counsel of a major multinational company (PepsiCo).

Thus, when Thompson speaks or writes about the Foreign Corrupt Practices Act or related topics we should pay attention.

Recently Thompson testified at a House hearing and stated that “the shared commitment [between the government and industry] to prevention and incentivizing investment in compliance is not the current reality.”

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Friday Roundup


Assistant Attorney General Leslie Caldwell on the DOJ’s FCPA Pilot Program, scrutiny alerts and updates, quotable and for the reading stack. It’s all here in the Friday roundup.

Caldwell on the FCPA Pilot Program

This article contains a recent Q&A with Assistant Attorney General Leslie Caldwell about the DOJ’s FCPA Pilot Program.

After reading the below excerpts, you might also want to read the article “Grading the DOJ’s FCPA Pilot Program.”

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