New Article – Grading The DOJ’s “FCPA Corporate Enforcement Policy”
Bloomberg BNA’s White Collar Crime Report recently published my article “Grading the DOJ’s FCPA Corporate Enforcement Policy.”
The article can be downloaded here for free and address the following issues: (i) the obvious logical gap in the Corporate Enforcement Policy (CEP); (ii) how the CEP, both in terms of rhetoric and substance, is really nothing new; (iii) ten specific reasons why the corporate community should take the CEP with a grain of salt; and (iv) how the CEP falls short of accomplishing the laudable goals articulated by the DOJ compared to other alternatives previously advanced.
Once Again, The DOJ Shoots Itself In The Foot
The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. The latest attempt to achieve this policy goal of course was the DOJ’s November 29th announcement of a new “FCPA Corporate Enforcement Policy.” (This post rounds up all previous posts on this topic).
Why then, literally a few hours after announcing its latest attempt to motivate companies to voluntarily disclose, did the DOJ in announcing the SBM Offshore enforcement action (see here and here for prior posts) once again (see here and here for prior similar posts) shot itself in the foot by making decisions that should result in any board member, audit committee member, or general counsel informed of current events not making the decision to voluntarily disclose?
Roundup Of DOJ “FCPA Corporate Enforcement Policy” Posts
FCPA Professor has been the place to be for the most comprehensive, candid and real-time information concerning the DOJ’s announcement on November 29th of a new “FCPA Corporate Enforcement Policy” aimed, in the words of the DOJ, “at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.”
If you missed the eleven separate posts, no worries as this post collects in one place all posts related to the “FCPA Corporate Compliance Policy.”
What Others Are Saying About The DOJ’s “FCPA Corporate Enforcement Policy”
In running this website, I often have to “roll up my sleeves” and “get to work” to provide you comprehensive information about the Foreign Corrupt Practices Act.
Whether it’s reading hundreds of pages relevant to an FCPA enforcement action (vs. summarizing a DOJ/SEC press as other FCPA websites do) or in this case analyzing over 40 law firm publications about the DOJ’s new “FCPA Corporate Enforcement Policy,” it’s what I do and I hope you gain value from it.
For The Record, The FCPA (The Actual Statute) Already Has Some Presumptions
I seriously question whether certain FCPA commentators who hold themselves out as experts have even read and/or understand the Foreign Corrupt Practices Act statute.
For instance, presumptions are not new to the FCPA space. Indeed, as highlighted below the FCPA (the actual statute – not mere non-binding DOJ policy such as announced last week in the form of the DOJ’s “FCPA Corporate Enforcement Policy) already has some presumptions.