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The Numbers Prove That The DOJ’s FCPA Pilot Program Is Really Nothing New


Prior posts (here, here and here) have discussed the DOJ’s “new” Foreign Corrupt Practices Act “pilot program” including the fact that the DOJ’s latest attempt to reward voluntary disclosure and cooperation is nothing new (see here).

This post highlights, through the use of the DOJ’s own numbers, that the DOJ’s offer to perhaps extend:

(i) up to a 50% reduction off the minimum amount suggested by the guidelines to companies that voluntarily disclose, cooperate and remediate; and

(ii) up to 25% reduction off the minimum amount suggested by the guidelines to companies that cooperate and remediate even in the absence of voluntary disclosure

is nothing new either.

In short, both in terms of rhetoric and substance, the DOJ’s FCPA “pilot program” is really not “new.”

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FCPA Insanity: Doing The Same Thing Over And Over Again And Expecting Different Results


Albert Einstein is credited with saying that insanity is “doing the same thing over and over again and expecting different results.”

You don’t need to be an Einstein to realize that the main thrust of the DOJ’s recently announced FCPA “pilot program” (that is to encourage voluntary disclosure) is nothing new.

All you need to have done over the past decade is pay attention to DOJ enforcement agency speeches because the DOJ has been saying the same thing over and over again.

As noted in this original post announcing the DOJ’s “new” “pilot program,” the DOJ’s latest attempt to encourage voluntary disclosure should most certainly be seen as an acknowledgement that its long-standing efforts have not been as successful as the DOJ might hope.

Does the DOJ honestly believe that this most recent iteration is going to lead to any different results – particularly since (as will be explored in a future post) the “pilot program” really does not represent anything new despite the DOJ’s best effort to convince the corporate community otherwise?

Set forth below are numerous DOJ speeches since 2005 to encourage voluntary disclosure, including the DOJ’s repeated assurances that voluntary disclosure results in meaningful credit.

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The Obvious Logical Gap In The DOJ’s “New” FCPA “Pilot Program”

logical gap

This post is short, but to the point.

According to the DOJ, its Foreign Corrupt Practices Act “pilot program” “is intended to encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered by or disclosed to law enforcement.”

The above objective suffers from an obvious logical gap in that for years the DOJ has had the opportunity to do just what the “pilot program” seeks to accomplish.

Indeed, since 2011 19 corporate DOJ FCPA enforcement actions originated with voluntary disclosures. However, in only five of those instances (26%) was there a related DOJ prosecution of individuals.

If the goal of the FCPA “pilot program” is to encourage voluntary disclosures to permit the DOJ to prosecute individuals” then why have 74% of corporate DOJ FCPA enforcement actions over the past five years that originated with a voluntary disclosure not resulted in any related DOJ prosecution of individuals?

What You Need To Know About The DOJ’s “New” FCPA “Pilot Program”

Need to know

This previous post first reported the DOJ’s announcement of a “new” Foreign Corrupt Practices Act “pilot program” and contained a general observation regarding the announcement.

Future posts will continue to analyze and provide commentary on the “pilot program.”

This post accepts the “pilot program” for what it is and sets forth in Q&A format, based on the DOJ’s own information, what you need to know about the program.

The user-friently Q&A is published as a courtesy to the legal and compliance community.

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DOJ Announces “New” One-Year FCPA “Pilot Program”

Justice Dept

For over a decade, DOJ officials have tried to motivate business organizations to voluntarily disclose Foreign Corrupt Practices Act violations.

In what should be seen as an acknowledgement that such long-standing efforts have not been as successful as the DOJ might hope, in a press conference this morning, Assistant Attorney General Leslie Caldwell and DOJ Fraud Section Chief Andrew Weissmann announced a new one-year Foreign Corrupt Practices Act “pilot program.”

According to the DOJ officials, the purpose of the “pilot program” is provide guidance to DOJ FCPA prosecutors about resolutions in corporate FCPA cases and to motivate companies to self-disclose and fully cooperate with the DOJ’s fraud section in FCPA enforcement actions.

Prior to summarizing the press conference (which I attended via telephone) let me offer my own two cents.

“To knowledgeable observers, there is little that is new in today’s DOJ announcement of a “pilot program”. Just by holding a press conference and ascribing a new label to something, does not make something new. The objectives of the DOJ are laudable, however if the DOJ best wants to accomplish its objectives, this new “pilot program” is not the best answer. Rather, as current Fraud Section Chief Andrew Weissmann (and several other former high-ranking DOJ officials) have recognized, an FCPA compliance defense is the best incentive to get companies to voluntary disclose FCPA violations by employees or agents within its organization. For additional information on how such an approach can best position the DOJ to better achieve its policy objectives, see prior posts here and here.”

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