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Rebooting A Long-Standing FCPA Proposal In The Aftermath Of Newmont Mining’s Recent Disclosure


In the aftermath of a recent Foreign Corrupt Practices Act disclosure by Newmont Mining, this post reboots a proposal first suggested in August 2010 (see here), further proposed in August 2016 (see here), and proposed again in March 2017 (see here).

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the “declining” enforcement agency publicly state, in a thorough and transparent manner, the facts the company disclosed and why the “declining” agency did not bring an enforcement action based on those facts.

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DOJ Refuses To Answer Basic Factual Questions Regarding Its Recent FCPA Enforcement Actions


“Greater transparency benefits everyone. The Criminal Division stands to benefit from being more transparent ..” (DOJ Assistant Attorney General, April 17, 2017).

As highlighted in this post, in April a high-ranking DOJ enforcement official stated that it is the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”

For those interested in holding FCPA enforcement officials accountable for their public statements, this requires a willingness by the DOJ to provide the public information that allows this occur.

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Friday Roundup


Quotable, FCPA issues at City Hall, and for the reading stack. It’s all here in the Friday roundup.


In this recent post titled “Judicial Scrutiny of Corporate Monitors: Additional Uncertainty for FCPA Settlements?” Debevoise attorneys Andrew Levine, Philip Rohlik and Michael Gramer note:

“Like many other complex corporate criminal matters, FCPA matters largely get resolved without meaningful judicial oversight. […] In complex cases, corporate criminal enforcement can follow the largely consensual process that has evolved in the FCPA arena.  After a long period of investigation, in which a company often cooperates, the company and DOJ negotiate a resolution, based on legal theories and facts largely determined by the DOJ.

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Issues To Consider From The CDM Smith Enforcement Action


This previous post highlighted the DOJ’s recent Foreign Corrupt Practices Act enforcement action against CDM Smith Inc. Pursuant to a so-called “declination” with disgorgement, CDM Smith agreed to disgorge approximately $4 million based on DOJ findings “that CDM Smith, through its employees and agents, and those of its wholly owned subsidiary in India paid approximately $1.18 million in bribes to government officials in India in exchange for highway construction supervision and design contracts and a water project contract…”.

This post highlights additional issues to consider.

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Issues To Consider From The Linde Enforcement Action


This previous post highlighted the DOJ’s recent $11.2 million declination with disgorgement and forfeiture against Linde for nearly decade-old conduct of an acquired entity.

This post continues the analysis by highlighting additional issues to consider.

Voluntary Disclosure

Nearly all decisions to voluntary disclose should be questioned (see this article for the reasons why), but Linde’s decision to voluntarily disclose should seriously be questioned.

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