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Friday Roundup

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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Yates Defends The “Yates” Memo

Sally Yates, during her confirmation hearing before the Senate Judiciary Committee to be Deputy Attorney General at the U.S. Department of Justice.  March 24, 2015.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

As highlighted in this prior post, in September 2015 the DOJ released this memo authored by DOJ Deputy Attorney General Sally Yates titled “Individual Accountability for Corporate Wrongdoing” (the so-called “Yates” Memo).

The “Yates” Memo was met with mounds of criticism including from former high-ranking DOJ officials. Against this backdrop Yates, not surprisingly defended her namesake memo.

The latest defense occurred last week as Yates delivered this speech at the New York City Bar Association White Collar Crime Conference.  Yates focused her remarks on “why we did it and how it’s working so far in practice.”

Her remarks focused on individually accountability, cooperation, and how the Yates Memo is working in practice. As to this later issue, Yates, not surprisingly, stated that the memo is “causing positive change within companies.” This claim of course is difficult, if not impossible, to verify empirically.

Yates also touched upon the DOJ’s recent FCPA “Pilot Program.” (See here for the article “Grading the DOJ’s FCPA Pilot Program”).

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Friday Roundup

Roundup

Elevate, a double standard dandy, scrutiny alert, and quotable.

It’s all here in the Friday roundup.

Elevate

Elevate your Foreign Corrupt Practices Act substantive knowledge and practical skills at the FCPA Institute – Nashville on May 2-3. As highlighted here, the FCPA Institute promotes active learning by participants through issue-spotting video exercises, skills exercises, small-group discussions, and the sharing of real-world practices and experiences.

FCPA Institute participants not only gain knowledge, practical skills and peer insight, but can also elect to have their knowledge assessed to earn a certificate of completion upon passing a written assessment tool. In this way, successful completion of the FCPA Institute represents a value-added credential for professional development. In addition, attorneys who complete the FCPA Institute are also eligible to receive Continuing Legal Education (“CLE”) credits and prior FCPA Institute participants have also received continuing education units from the Society of Corporate Compliance and Ethics.

Law firm lawyers, in-house counsel, accounting and auditing professionals and others have already registered for the FCPA Institute – Nashville. To join this group, click here to register.

A Double Standard Dandy

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FCPA Insanity: Doing The Same Thing Over And Over Again And Expecting Different Results

insanity

Albert Einstein is credited with saying that insanity is “doing the same thing over and over again and expecting different results.”

You don’t need to be an Einstein to realize that the main thrust of the DOJ’s recently announced FCPA “pilot program” (that is to encourage voluntary disclosure) is nothing new.

All you need to have done over the past decade is pay attention to DOJ enforcement agency speeches because the DOJ has been saying the same thing over and over again.

As noted in this original post announcing the DOJ’s “new” “pilot program,” the DOJ’s latest attempt to encourage voluntary disclosure should most certainly be seen as an acknowledgement that its long-standing efforts have not been as successful as the DOJ might hope.

Does the DOJ honestly believe that this most recent iteration is going to lead to any different results – particularly since (as will be explored in a future post) the “pilot program” really does not represent anything new despite the DOJ’s best effort to convince the corporate community otherwise?

Set forth below are numerous DOJ speeches since 2005 to encourage voluntary disclosure, including the DOJ’s repeated assurances that voluntary disclosure results in meaningful credit.

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DOJ Announces “New” One-Year FCPA “Pilot Program”

Justice Dept

For over a decade, DOJ officials have tried to motivate business organizations to voluntarily disclose Foreign Corrupt Practices Act violations.

In what should be seen as an acknowledgement that such long-standing efforts have not been as successful as the DOJ might hope, in a press conference this morning, Assistant Attorney General Leslie Caldwell and DOJ Fraud Section Chief Andrew Weissmann announced a new one-year Foreign Corrupt Practices Act “pilot program.”

According to the DOJ officials, the purpose of the “pilot program” is provide guidance to DOJ FCPA prosecutors about resolutions in corporate FCPA cases and to motivate companies to self-disclose and fully cooperate with the DOJ’s fraud section in FCPA enforcement actions.

Prior to summarizing the press conference (which I attended via telephone) let me offer my own two cents.

“To knowledgeable observers, there is little that is new in today’s DOJ announcement of a “pilot program”. Just by holding a press conference and ascribing a new label to something, does not make something new. The objectives of the DOJ are laudable, however if the DOJ best wants to accomplish its objectives, this new “pilot program” is not the best answer. Rather, as current Fraud Section Chief Andrew Weissmann (and several other former high-ranking DOJ officials) have recognized, an FCPA compliance defense is the best incentive to get companies to voluntary disclose FCPA violations by employees or agents within its organization. For additional information on how such an approach can best position the DOJ to better achieve its policy objectives, see prior posts here and here.”

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