Yet again, see here for a prior post, the Department of Justice recently revised its Foreign Corrupt Practices Act Corporate Enforcement Policy (CEP) – originally released in November 2017. (See here for the current version).
As highlighted below, while two of the three revisions make sense, the revision concerning voluntary disclosure is absurd.
Recently Deputy Assistant Attorney General Matthew Miner delivered this speech at an American Bar Association event in Prague.
During the speech, Miner touched upon international cooperation; the DOJ’s so-called “no piling on” policy; the DOJ’s “Evaluation of Corporate Compliance Programs” guidance document; gathering evidence in foreign countries; voluntary disclosure, cooperation and so-called declinations; and enforcement actions against foreign companies.
In the recent Walmart enforcement action, the DOJ’s NPA states that the company received “full credit” for its cooperation with the DOJ “into conduct in Brazil, China, and India and partial cooperation credit for its investigation into conduct in Mexico.”
The NPA further states: “the Company received partial credit for the conduct in Mexico because, in the view of the DOJ, Walmart did not timely provide documents and information to the DOJ in response to certain requests and did not deconflict with the DOJ’s request to interview one witness before the Company interviewed that witness.”
It would appear that the DOJ’s decision was based, in least in part, on this June 2018 Fourth Circuit decision in which the court, interpreting an agreement that the DOJ drafted, ruled against the DOJ. If true, it is disturbing that the DOJ would penalize a company for making legal arguments that were upheld by an appellate court.
On October 18th, Principal Deputy Assistant Attorney General John Cronan delivered a speech in Brazil at an event hosted by a for-profit business that generally charges people to attend (see here for the prior post). On October 25th, Cronan delivered another speech in Washington, D.C. at another event hosted by the same for-profit business.
Why DOJ (and SEC) officials allows themselves to be used in such a way by profit-seeking businesses to drive attendance to their events is beyond me. (See prior posts here and here, among many others, for why the selling of FCPA enforcement attorneys needs to stop).
Ethics aside, in his speech Cronan talked about the DOJ’s priorities with respect to corporate enforcement, what the DOJ expects “from companies who choose to voluntarily self-disclose misconduct and seek to cooperate with law enforcement,” and the DOJ’s “commitment to reaching fair and equitable resolutions, including through the principles reflected in the Criminal Division’s policy with respect to monitors.”
The DOJ has long talked about how “greater transparency benefits everyone” (see here).
In this May 2017 speech, a high-ranking DOJ official talked about “the importance of transparency in our anti-corruption prosecutions.”
In this August 2017 speech, a high-ranking DOJ official stated: “We are taking additional steps to enhance our enforcement of the FCPA against both corporate and individual actors, and to promote transparency in doing so.”
In announcing its November 2017 FCPA Corporate Enforcement Policy (see here) the DOJ talked about greater “clarity about our decision-making process” and the “advantage of the policy for businesses is to provide transparency about the benefits available if they satisfy the requirements.”
Against this backdrop, if the DOJ is truly committed to transparency and clarity in the FCPA context, why does it continue to play cat and mouse games with the business community about terms and conditions it uses in describing its own enforcement policies?
