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Richard Shine’s 1982 Lecture – “Enforcement Of The FCPA By The Department Of Justice”

1982

The year was 1982 and Richard Shine was Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit).  Shine gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).

Three things stand out from Shine’s lecture.

First, the lecture is populated with references to the FCPA’s legislative history.  On one level, this is not surprising given that in 1982 the DOJ was likely still finding its way as to the FCPA and its enforcement and it is logical that the legislative history – which evidences Congressional intent – would be a guide.

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Assistant AG Polite Talks Compliance And Related Topics

Polite

Recently DOJ Criminal Division Assistant Attorney General Kenneth Polite delivered this speech.

He focused on the following topics: how the DOJ evaluates “corporate compliance programs to ensure that companies are designing and implementing effective compliance systems and controls, creating a culture of compliance, and promoting ethical values,” corporate monitors, DOJ compliance related resources, and the consequences for a company violating a DOJ resolution agreement.

Polite also announced that he has asked his “team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law (based on the nature of the legal violation that gave rise to the resolution, as relevant), and is functioning effectively.”

During his speech, Polite used the words or concepts “detect and prevent” several times. Keep in mind however, that there is no relevant legal standard that requires corporate compliance programs to “detect and prevent” violations of law. For this reason among others, Polite’s policy suggestion is off-target.

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Attorney General Garland On “Force-Multipliers” And Other Topics

Garland

Yesterday, Attorney General Merrick Garland delivered this speech (virtually) to the ABA Institute on White Collar Crime.

In the speech, Garland discussed many of the same topics that DOJ enforcement officials have been talking about for 10-15 years such as how prosecution of corporate crime is a DOJ priority, the importance of individual accountability, and corporate cooperation.

Garland began his speech as follows:

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Measured By This Goal, DOJ Policy Has Failed

failure3

Imagine a government enforcement agency unveiling an enforcement policy that had X as a stated goal and then nearly six 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 (CEP), the DOJ stated that a “main goal” was to encourage voluntary disclosures to permit prosecution of individuals. Yet, nearly six 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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