More On The DOJ’s New Monitor Policy
As highlighted in this prior post, DOJ Assistant Attorney General Brian Benczkowski recently announced a new DOJ monitor policy via this written memo titled “Selection of Monitors in Criminal Division Matters.”
The memo is not Foreign Corrupt Practices Act specific, but FCPA relevant as it establishes “standards, policy, and procedures for the selection of monitors in matters being handled by Criminal Division attorneys” and “shall apply to all Criminal Division determinations regarding whether a monitor is appropriate in specific cases and to any deferred prosecution agreement (“DPA”), non-prosecution agreement (“NPA”), or plea agreement between the Criminal Division and a business organization which requires the retention of a monitor.”
Before diving into the specifics of the memo, it is important to note the following.
Assistant AG Benczkowski Announces That The DOJ Has Ditched The “Shortsighted” Compliance Counsel Position And Announces A New Corporate Monitor Policy
In 2015 when the DOJ announced that it had retained a “compliance expert” to “provide expert guidance to Fraud Section prosecutors,” I called the move little more than a public relations move (see here for the prior post).
In mid-2017, the DOJ’s compliance counsel left her position and in doing so attempted to draw much attention to herself and her politics. (See here and here for prior posts).
This March 2018 post checked in with the DOJ regarding its compliance counsel vacancy and mum was the word from the DOJ. The prior post suggested that if the position was that important it would have been filed after nine months, but then again it never was that important but rather a public relations move.
Deputy Assistant Attorney General Matthew Miner On A Variety Of FCPA Issues (With Commentary)
Yesterday, Deputy Assistant AG Matt Miner delivered this speech.
It touched upon a number of Foreign Corrupt Practices Act issues including: the DOJ’s Corporate Enforcement Policy, voluntary disclosure, so-called declinations, coordinated resolutions, general compliance issues, and M&A transactions.
This post summarizes the speech and provides certain commentary.
The DOJ’s Latest FCPA Rhetoric Doesn’t Even Pass The Smell Test
Speeches by Foreign Corrupt Practices Act enforcement officials have long included over-the-top rhetoric. (See this article for a general summary).
This recent post highlighted a speech by DOJ Deputy Assistant Attorney General Matthew Miner. In the speech, Miner stated that when a company voluntarily discloses FCPA issues and engages in remedial actions, this frees up DOJ resources and “these resources can then be directed to other cases, not only in the FCPA context, but also to other areas such as opioid enforcement, human trafficking, and crimes impacting vulnerable victims, like children and the elderly.”
The DOJ’s latest FCPA rhetoric does not even pass the smell test and set forth below are various reactions to this portion of Miner’s speech from FCPA practitioners.
A Game Of Cat And Mouse
The DOJ has long talked about how “greater transparency benefits everyone” (see here).
In this May 2017 speech, a high-ranking DOJ official talked about “the importance of transparency in our anti-corruption prosecutions.”
In this August 2017 speech, a high-ranking DOJ official stated: “We are taking additional steps to enhance our enforcement of the FCPA against both corporate and individual actors, and to promote transparency in doing so.”
In announcing its November 2017 FCPA Corporate Enforcement Policy (see here) the DOJ talked about greater “clarity about our decision-making process” and the “advantage of the policy for businesses is to provide transparency about the benefits available if they satisfy the requirements.”
Against this backdrop, if the DOJ is truly committed to transparency and clarity in the FCPA context, why does it continue to play cat and mouse games with the business community about terms and conditions it uses in describing its own enforcement policies?