Deputy AG Rosenstein On …
Last Thursday was a big speech day for Deputy Attorney General Rod Rosenstein. In addition to announcing a new non-binding DOJ policy on “coordination of corporate resolution penalties,” (see here and here for prior posts) Rosenstein also appeared at an FCPA conference and delivered this speech (continuing the disgraceful practice of for-profit conference firms using our public officials to drive attendance to their paid events).
Rosenstein’s speech was in part duplicative of his earlier “piling on” speech, but this post highlights Rosenstein’s general statements on the FCPA, foreign law enforcement cooperation, and the DOJ’s recent so-called declination.
Discouraging “Piling On” Sounds Great, But It All Depends What “Piling On” Means
As highlighted in yesterday’s post, DOJ Deputy Attorney General Rod Rosenstein announced a non-binding policy discouraging “piling on” by instructing DOJ “components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”
The DOJ’s new policy is general in nature, not FCPA specific, but portions of it are FCPA relevant and this post analyzes the new policy in the context of FCPA enforcement. In short, discouraging “piling on” sounds great, but it all depends what “piling on” means.
DOJ Announces Non-Binding Policy Discouraging “Piling On” Regarding Corporate Resolution Penalties
Yesterday, DOJ Deputy Attorney General Rod Rosenstein announced a non-binding policy discouraging “piling on” by instructing DOJ “components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”
While this represents a new DOJ non-binding policy, the concept of “piling on” has been talked about for quite some time including by Obama administration enforcement officials. (See prior FCPA Professor coverage here, here and here). This includes in the FCPA context going back to the FCPA reform hearings in 2011 (see here for the prior post) – a concept that has long been termed “double-dipping” on these pages (see here). (See here for an FCPA Flash Podcast on the subject with David Bitkower (former Principal Deputy Assistant Attorney General).
The DOJ’s new policy is general in nature, not FCPA specific, but portions of it are FCPA relevant and a future post will analyze the new policy in the context of FCPA enforcement. For now, this post excerpts Rosenstein’s speech and sets forth the policy.
What Viable Criminal Charges Against D&B Did The DOJ Actually “Decline”?
This prior post highlighted the SEC’s $9.2 million Foreign Corrupt Practices Act enforcement action against Dun & Bradstreet based on the conduct of two indirect Chinese subsidiaries from 6 to 12 years ago.
In connection with the SEC’s enforcement action, the DOJ quietly released this letter stating that it has “declined prosecution consistent with the FCPA Corporate Enforcement Policy.”
However, the question is posed: based on information in the public domain what viable criminal charges against D&B did the DOJ actually “decline”? The answer, as discussed in this post, appears to be none.
Matt Miner’s (Deputy Assistant AG) Previous Writings On …
As highlighted in previous posts here, here, and here it is always interesting – when individuals go into or leave government service – to analyze what they have written about before or after their government stint.
Matt Miner recently became Deputy Assistant Attorney General in the DOJ’s criminal division and this post highlights his previous writings on topics now relevant to this job ranging from the “Yates Memo,” DOJ transparency, the deficiencies of DOJ guidance as a solution, and the FCPA’s “foreign official” element.