DOJ Announces A “New Safe Harbor Policy For Voluntary Disclosures Made In Connection With Mergers And Acquisitions”
For years, DOJ officials have been talking about policy issues surrounding merger & acquisition activity and potential criminal conduct.
Earlier this week, Deputy Attorney General Lisa Monaco announced a “new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions.”
However, as highlighted below, substantively the policy is not really new, nor is it a safe harbor as companies who follow the policy and “receive the presumption of a declination” will still have to pay a disgorgement amount (which in the FCPA context can be millions and sometimes higher than other forms of resolution such as a non-prosecution or deferred prosecution agreement).
Before highlighting Monaco’s recent speech, set forth below is a sampling of speeches from DOJ officials over the past five years on the topic of policy issues surrounding merger & acquisition activity and potential criminal conduct.
Principal Associate Deputy Attorney General Miller On Voluntary Disclosure, Compensation Clawback, And National Security
It is September which means enforcement agency officials hit the “conference circuit” to give scripted speeches.
Today it was Principal Associate Deputy Attorney General Marshall Miller speaking at a private event to discuss “the Justice Department’s corporate criminal enforcement priorities” specifically (in what is perhaps a laughable statement to many who closely follow DOJ enforcement activity) the DOJ’s “commitment to consistency, predictability, and transparency in our corporate enforcement work …”.
Miller began by talking about voluntary disclosure and stated:
Yes Of Course Our Policy Is Working – Says The Policy Maker
Even though the government has been encouraging companies to voluntary disclosure Foreign Corrupt Practices Act (and other) issues for approximately 20 years, every few years it seems the DOJ tweaks it voluntary disclosure and related corporate criminal enforcement policy.
The latest example occurred in January 2023. (See here for the prior post).
As long as there have been government programs advocated by government officials, officials have been inclined to proclaim the program a success.
And so it is with the DOJ’s most recent voluntary disclosure revisions.
Slumbering Individual FCPA Enforcement Actions
Most in the Foreign Corrupt Practices Act space learn when the DOJ announces criminal FCPA charges against individuals. Thereafter, the tendency (including by myself) is to sort of forget about many of the individual actions.
However, recently I examined the dockets for all individuals criminally charged with FCPA offenses since January 1, 2017 and was surprised to learn that a meaningful percentage of these cases are slumbering with no substantive activity in quite some time.
Thus, when viewing DOJ FCPA individual enforcement action statistics it is important to keep in mind that many of these cases are slumbering and are not being actively prosecuted.
Assistant AG Polite Says Do Not “Fall Victim To Recency Bias” And Serves Up A Word Salad
Another week, another speech by Assistant Attorney General Kenneth Polite.
In the speech, Polite told an audience of white collar criminal professionals not to” fall victim to recency bias” (even though of course the DOJ facilitates it) and served up a word salad of ambiguous terms and concepts.
I have been reading speeches by DOJ enforcement officials for approximately 15 years and Polite’s speech is one of the worst I have encountered as it is mostly just a play on words.