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Measured By This Goal, DOJ Policy Has Failed

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Imagine a government enforcement agency unveiling an enforcement policy that had X as a stated goal and then nearly five 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, the DOJ stated that a “main goal” was to encourage voluntary disclosures to permit prosecution of individuals. Yet, nearly five 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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Criminal Division Assistant AG Benczkowski To Depart DOJ

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Yesterday, the DOJ announced that Brian Benczkowski (Assistant Attorney General of the Criminal Division) will leave the DOJ next month.

According to the DOJ’s release: “Throughout Benczkowski’s tenure, the division has announced an array of policies and guidance geared towards promoting transparency in white-collar enforcement, including: (1) the division’s “Evaluation of Corporate Compliance Program” Guidance, (2) the division’s Monitorship Memo, (3) the Department’s Inability to Pay Guidance, (4) revisions to the Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy (CEP), and (5) the FCPA Unit’s publication of CEP declination letters online.  Driving these efforts has been the view that greater transparency in how prosecutors apply standards and criteria to cases will make investigations more efficient and outcomes fairer and more consistent.”

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The Big Picture Regarding The DOJ’s Revised Evaluation Of Corporate Compliance Programs Guidance Document

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This prior post highlighted the recent revisions to the DOJ’s “Evaluation of Corporate Compliance Programs” (ECCP) guidance document. This post provides the big picture.

For starters, there is nothing per se “wrong” with the ECCP or its revisionsIn fact, the ECCP is a nicely written and organized document. Substantively however, the revised ECCP uses the word “effective” or “effectively” 54 times (the original version used the word “effective” or “effectively” 51 times). However, there is no legal requirement that business organizations have “effective” compliance programs. Moreover, the revised ECCP (just like the original ECCP) is little more than a document full of questions. (Precisely, the revised ECCP contains 168 questions whereas the original ECCP contained 151 questions).

Big picture, the revised ECCP uses the word “effective” or “effectively” 3 more times than the original ECCP and the revised ECCP has 17 more questions than the original ECCP.

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DOJ Revises Its “Evaluation of Corporate Compliance Programs” Guidance Document

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Prior posts here and here discussed the DOJ’s “Evaluation of Corporate Compliance Programs” (ECCP) guidance document released in Spring 2019.

Recently, the DOJ released an updated version. While the ECCP is not Foreign Corrupt Practices Act specific, it is FCPA relevant and set forth below are the most meaningful changes to the ECCP.

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