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FCPA Enforcement Officials Address COVID-19 Related Questions

Soapbox

Earlier this week, Daniel Kahn (Sentior Deputy Chief, DOJ Criminal Division – Fraud Section) and Charles Cain (SEC FCPA Unit Chief) participated in this webinar.

During the webinar, Kahn and Cain addressed a variety questions related to their respective enforcement agencies relative to the COVID-19 crisis.

Set forth below are the issues addressed and their responses.

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FCPA Flash Podcast – A Conversation With Former DOJ Deputy Assistant Attorney General Matthew Miner On DOJ Policy During The COVID-19 Crisis

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash podcast episode is a conversation with Matthew Miner (Morgan Lewis – who recently served as DOJ Deputy Assistant Attorney General in the Criminal Division). While at the DOJ, Miner helped to develop various DOJ policy documents including its “inability to pay” guidance (see here), the FCPA Corporate Enforcement Policy (see here), and the Evaluation of Corporate Compliance Programs (see here). During the podcast, Miner discusses how these various DOJ policies are likely to be interpreted during the COVID-19 crisis.

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Facade Of Enforcement Across The Pond

Laughable

A facade of Foreign Corrupt Practices Act enforcement is when a business organization – often for reasons of risk aversion and efficiency – agrees to resolve an enforcement action in the absence of any judicial scrutiny even though no employee or agent of the company (business organizations obviously can only act through real human beings) was charged. (See here for the article “The Facade of FCPA Enforcement” and here for the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement.”)

Even more troubling is when employees are charged, put the government to its burden of proof, are acquitted yet the business organization still resolves an enforcement action based on the same underlying conduct.

This 2014 post, published after the United Kingdom formally adopted deferred prosecution agreements, was titled “The U.K. Enters the Facade Era.” As discussed below, recently there was a major facade moment in the U.K.

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

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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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DOJ Deputy Assistant Attorney General Miner On “The Two Primary Goals Of White Collar Criminal Enforcement” (With Commentary)

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It’s mid-September which means a few things: the days are getting shorter, the trees are beginning to show color, and DOJ and SEC enforcement officials are on the speaking circuit.

Earlier this week it was SEC Chairman Jay Clayton (see here for the prior post) and yesterday it was DOJ Deputy Assistant Attorney General Matthew Miner who spoke on the two primary goals of white collar criminal enforcement: “(1) to deter legally non-compliant behavior and punish it where it does occur; and (2) to encourage greater compliant behavior, including creating a more level playing field for those who play by the rules.”

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