FCPA Flash – A Conversation With Alice Fisher Regarding DOJ FCPA Enforcement And Policy
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.
DOJ’s FCPA Unit Chief Refuses To Answer Various Factual Questions Regarding FCPA Enforcement
For years, I have tried to engage with Foreign Corrupt Practices Act enforcement officials and the consistent response has been no – even though such officials routinely speak at FCPA conferences (usually paid events runs by for profit companies) and routinely grant interview requests.
This is disappointing given that U.K. law enforcement officials have long engaged with me on bribery and corruption topics (see here, here, here and here among other posts).
After listening to this recent podcast in which DOJ FCPA Unit Chief Daniel Kahn speaks about a variety of FCPA issues, I invited Mr. Kahn to be a guest on the FCPA Flash podcast and was invited to submit questions. I submitted the below questions – mostly fact-based and statistically driven – yet the response I received from the DOJ press office was “Dan Kahn respectfully declines interview.”
Once Again The DOJ Shoots Itself In The Foot
This is the fourth time this general post has appeared on these pages (see here, here and here for prior posts).
So here it goes again.
The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. Why then does the DOJ continually make decisions that should result in any board member, audit committee member, or general counsel informed of current event not making the decision to voluntarily disclose?
The recent Societe Generale enforcement action (see here and here for prior posts) is just the latest example.
Deputy AG Rosenstein On Compliance
I’m sure Deputy Attorney General Rod Rosenstein does more than just give speeches, but lately (well he actually addressed this in his speech).
Earlier today, Rosenstein delivered this speech at Compliance Week and this post excerpts the speech.
Rosenstein stated: “When a company creates and fosters a culture of compliance, it creates value. Compliance is an investment. Ethical, law-abiding companies can better attract investors and partners. People want to do business with companies that they perceive as honest and reliable.”
Business Organizations Should Not Take The DOJ’s Latest Voluntary Disclosure Bait
The DOJ’s efforts to entice business organizations to voluntarily disclose (in the Foreign Corrupt Practices Act context and otherwise) stretches back approximately 15 years (see this prior post collecting various DOJ speeches going back to 2004).
Fast forward to 2012, then it was the FCPA Guidance which sought to entice business organizations to voluntarily disclose by, among other things, highlighting six “anonymized examples of matters DOJ and SEC have declined to pursue” where a common thread was voluntary disclosure.
In April 2016, it was the DOJ’s pilot program, an effort – in the words of the DOJ – to “encourage voluntary corporate self-disclosure.”