The DOJ recently released a revised version of its Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP), a policy document which “applies to all corporate criminal matters handled by the Criminal Division.”
Similar to prior versions of the CEP, the “best” a business organization can generally hope for under the CEP is an enforcement action.
The CEP states:
The Criminal Division will decline to prosecute a company for criminal conduct when the following factors are met:
1. The company voluntarily self-disclosed the misconduct to the Criminal Division;
2. The company fully cooperated with the Criminal Division’s investigation;
3. The company timely and appropriately remediated the misconduct; and
4. There are no aggravating circumstances related to the nature and seriousness of the offense, egregiousness or pervasiveness of the misconduct within the company, severity of harm caused by the misconduct, or criminal adjudication or resolution within the last five years based on similar misconduct by the entity engaged in the current misconduct.
However, the most important words come next.
The CEP states:
“As part of the CEP declination, the company will be required to pay all disgorgement/forfeiture as well as restitution/victim compensation payments resulting from the misconduct at issue.”
The DOJ’s website lists 21 “CEP Declinations” (19 in the FCPA context).
Recent examples include:
- Boston Consulting Group – $14.4 million disgorgement amount
- Lifecore Biomedical – $406,505 disgorgement amount
- Corsa Coal – $1.2 million disgorgement amount (inability to pay a higher amount)
- Safran – $17.2 million disgorgement amount
