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DOJ Makes Revisions To Its FCPA Corporate Enforcement Policy

revison

As highlighted here, in November 2017 the DOJ released a non-binding FCPA Corporate Enforcement Policy (“CEP” – see here for the original version).

Recently, the DOJ made various revisions to the CEP (see here for the current version) and this post highlights the revisions.

Original Version

Under the heading “Voluntary Self-Disclosure in FCPA Matters”

“The company discloses all relevant facts known to it, including all relevant facts about all individuals involved in the violation of law.”

New Version

Under the heading “Voluntary Self-Disclosure in FCPA Matters”

“The company discloses all relevant facts known to it, including all relevant facts about all individuals substantially involved in or responsible for the violation of law.”

Original Version

Under the heading “Full Cooperation in FCPA Matters”

“Where requested, de-confliction of witness interviews and other investigative steps that a company intends to take as part of its internal investigation with steps that the Department intends to take as part of its investigation”

New Version

Under the heading “Full Cooperation in FCPA Matters”

“Where requested and appropriate, de-confliction of witness interviews and other investigative steps that a company intends to take as part of its internal investigation with steps that the Department intends to take as part of its investigation”

The new version also contains the following footnote:

“Although the Department may, where appropriate, request that a company refrain from taking a specific action for a limited period of time for de-confliction purposes, the Department will not take any steps to affirmatively direct a company’s internal investigation efforts.”

Original Version

Under the heading “Timely and Appropriate Remediation in FCPA Matters”

“Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications”

New Version

Under the heading “Timely and Appropriate Remediation in FCPA Matters”

“Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including implementing appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company’s ability to appropriately retain business records or communications or otherwise comply with the company’s document retention policies or legal obligations”

Original Version

Under the heading “Comment” for “Cooperation Credit”

“De-confliction” is one factor that the Department may consider in determining the credit that a company will receive for cooperation. The Department’s requests to defer investigative steps, such as the interview of company employees or third parties, will be made for a limited period of time and will be narrowly tailored to a legitimate investigative purpose (e.g., to prevent the impeding of a specified aspect of the Department’s investigation). Once the justification dissipates, the Department will notify the company that the Department is lifting its request.”

New Version

Under the heading “Comment” for “Cooperation Credit”

“De-confliction” is one factor that the Department may consider in appropriate cases in evaluating whether and how much credit that a company will receive for cooperation. When the Department does make a request to a company to defer investigative steps, such as the interview of company employees or third parties, such a request will be made for a limited period of time and be narrowly tailored to a legitimate investigative purpose (e.g., to prevent the impeding of a specified aspect of the Department’s investigation). Once the justification dissipates, the Department will notify the company that the Department is lifting its request.

Original Version

Silent

New Version

New comment

“M&A Due Diligence and Remediation: The Department recognizes the potential benefits of corporate mergers and acquisitions, particularly when the acquiring entity has a robust compliance program in place and implements that program as quickly as practicable at the merged or acquired entity. Accordingly, where a company undertakes a merger or acquisition, uncovers misconduct through thorough and timely due diligence or, in appropriate instances, through post-acquisition audits or compliance integration efforts, and voluntarily self-discloses the misconduct and otherwise takes action consistent with this Policy (including, among other requirements, the timely implementation of an effective compliance program at the merged or acquired entity), there will be a presumption of a declination in accordance with and subject to the other requirements of this Policy.”

Including the following footnote:

“In appropriate cases, an acquiring company that discloses misconduct may be eligible for a declination, even if aggravating circumstances existed as to the acquired entity.”

Harold Kim, U.S. Chamber Institute for Legal Reform, stated:

“We are very encouraged by the Department’s continued commitment to provide the regulated community with appropriate guidance under the FCPA.  They deserve a lot of credit for advancing smart enforcement solutions that focus on boosting compliance and preventing wrongdoing from happening in the first place.”

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