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“I’m From The Government, And I’m Here To Help”

GOVT

Ronald Reagan once said “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”

I was reminded of this quote upon reading Assistant Attorney General Kenneth Polite’s recent speech announcing the “first significant changes to the Criminal Division’s CEP [Corporate Enforcement Policy] since 2017.” (See here for a prior post analyzing the 2017 CEP).

Per Polite’s language, I guess that means that the revisions to the CEP released in early 2019 (see here) as well as late 2019 (see here) were not “significant.”

Even though the DOJ has been actively encouraging voluntary disclosure for approximately 15-20 years, Polite stated:

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Measured By This Goal, DOJ Policy Has Failed

failure3

Imagine a government enforcement agency unveiling an enforcement policy that had X as a stated goal and then nearly six years later, X occurred only 7% of the time.

The answer would seem clear: the goal of the enforcement policy failed.

As highlighted below, in releasing the 2016 FCPA Pilot Program and thereafter in 2017 in releasing the FCPA Corporate Enforcement Policy (CEP), the DOJ stated that a “main goal” was to encourage voluntary disclosures to permit prosecution of individuals. Yet, nearly six years later there have been FCPA prosecutions of individuals in only 7% of cases the DOJ has self-identified as being resolved pursuant to / or consistent with the Pilot Program or the CEP.

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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

Podcast Logo

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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The DOJ’s Latest Voluntary Disclosure Guidance Is Absurd

absurd

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.

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Let’s Analyze This For A Minute

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© ClassicStock / Masterfile
Model Release: Yes
Property Release: No
1960s MAN THINKING HAND PENCIL ON CHIN WEARING EYEGLASSES SERIOUS EXPRESSION

This recent Wall Street Journal Risk & Compliance Journal post by an individual new to the Foreign Corrupt Practices Act space reads in full:

“A U.S. Justice Department program that incentivizes companies to self-report foreign corruption is making headway as prosecutors look for ways to hold individuals accountable for wrongdoing, according to an official in the department’s Foreign Corrupt Practices Act unit.”

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