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Measured By This Goal, DOJ Policy Has Failed

By on January 27, 2022 in Declination Decisions, DOJ, DOJ FCPA “Pilot Program”, DOJ FCPA Corporate Enforcement Policy, Enforcement Agency Policy
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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 – A Conversation With Alice Fisher Regarding DOJ FCPA Enforcement And Policy

By on July 11, 2018 in DOJ, DOJ “Piling On” Policy, DOJ FCPA “Pilot Program”, DOJ FCPA Corporate Enforcement Policy, Enforcement Agency Policy, Enforcement Agency Speeches, FCPA Flash, FCPA Reform, Opinion Procedure Release, Voluntary Disclosure
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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 episode is a conversation with Alice Fisher (Latham & Watkins and former Assistant Attorney General in charge of the DOJ’s Criminal Division). During the podcast, Fisher discusses: the DOJ’s recent non-binding policy discouraging “piling on”;  the DOJ’s FCPA Opinion Procedure program in light of her 2006 comments as Assistant AG that the program should “be something that is useful as a guide to business”; whether the DOJ’s long-standing efforts to encourage voluntary disclosure have failed (for instance in the same above-linked speech Fisher stated: “I can tell you [companies] in unequivocal terms that you will get a real benefit” for voluntary disclosure; whether FCPA enforcement (in terms of resolution vehicles, enforcement theories, DOJ/SEC policy, etc.) has evolved for the better or the worse since her time at the DOJ; and what about the FCPA (the actual statute) or FCPA enforcement (DOJ/SEC enforcement policy, resolution vehicles, etc.) should change and why.

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Deputy AG Rosenstein Assumes Causation In Calling The FCPA Pilot Program “Successful”

By on December 6, 2017 in DOJ FCPA “Pilot Program”, DOJ FCPA Corporate Enforcement Policy, Enforcement Agency Policy, Enforcement Agency Speeches, Voluntary Disclosure
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As long as there have been government programs, government officials have been inclined to proclaim the program a success.

For instance, last week in announcing the DOJ’s new “FCPA Corporate Enforcement Policy, Deputy Attorney General Rod Rosenstein stated:  “The incentive system set forth in the Department’s FCPA Pilot Program motivates and rewards companies that want to do the right thing and voluntarily disclose misconduct. In the first year of the Pilot Program, the FCPA Unit received 22 voluntary disclosures, compared to 13 during the previous year.  In total, during the year and a half that the Pilot Program was in effect, the FCPA Unit received 30 voluntary disclosures, compared to 18 during the previous 18‑month period.”

As highlighted in this post, Rosenstein’s statement assumes causation – in other words that the supposed increase in voluntary disclosures was the result of the April 2016 Pilot Program.

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On The Intersection Of Antitrust Enforcement And Corruption

By on October 11, 2017 in Antitrust, DOJ FCPA “Pilot Program”, Enforcement Agency Policy, Enforcement Agency Speeches, FCPA Related Charges, Legislative History
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Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.

Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.

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Mulling Over Moser’s Recent FCPA Remarks

By on August 7, 2017 in DOJ Enforcement Action, DOJ FCPA “Pilot Program”, Enforcement Agency Policy, Enforcement Agency Speeches, Foreign Law Enforcement Cooperation
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Recently Sandra Moser (Principal Deputy Chief, Fraud Section, DOJ) delivered these remarks (provided to me by the DOJ) at an event titled “Global Forum on Anti-Corruption in High Risk Markets.”

This post provides commentary on the remarks ranging from how best to incentivize compliance, the U.S. “piling” on foreign law enforcement actions, individual accountability, DOJ transparency in resolving FCPA enforcement actions, and the DOJ’s FCPA Pilot Program.

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