Measured By This Goal, DOJ Policy Has Failed
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.
Survey Says
Recently, Ethics and Compliance Initiative (ECI) released this survey titled “Corporate Compliance Programs and U.S. Department of Justice Enforcement Policies.”
As stated by ECI, the survey “was designed to obtain ethics & compliance leaders’ opinions about the DOJ’s enforcement guidelines and their intersection with corporate compliance programs.”
According to ECI, the “survey was conducted online, accessible through: unique invitation links sent to qualifying individuals; and an anonymous link posted on ECI’s and partner organizations’ platforms and websites.” Data collection took place May through June 2021 and participates included: 248 chief ethics & compliance officers (CECOs), chief compliance officers (CCOs) and chief ethics officers (CEOs) or their equivalents.”
A few data points that caught my eye.
“Complicated Questions Of Law”
The Department of Justice is looking for a trial attorney in its Foreign Corrupt Practices Act unit.
Per the job posting, one of the duties of the attorney is to advise and instruct Assistant U.S. attorneys “on complicated questions of law and Departmental policy with respect to the FCPA.”
“Complicated questions of law.”
It is just four words in a job posting, but it is a notable four words and an important acknowledgment by the DOJ that the Foreign Corrupt Practices Act is not a simple, straight forward statute as some (including the DOJ) often portray it to be.
Assistant Attorney General Kenneth Polite On …
Recently, Assistant Attorney General Kenneth Polite responded to Q&A’s from Law360 including the following that are Foreign Corrupt Practices Act relevant.
Q: Travel and in-person investigation are seen as particularly important in the FCPA context, and there’s been a lot of chatter about how pandemic restrictions may have slowed the pipeline pretty significantly. Do you think that’s an accurate perception?
Friday Roundup
Guilty plea, off-target, fear-based marketing, and for the reading stack. It’s all here in the Friday Roundup.
Guilty Plea
This recent post highlighted the DOJ’s money laundering case against Luis Enrique Martinelli Linares (a citizen of Panama and Italy) and his brother Ricardo Alberto Martinelli Linares (also a citizen of Panama and Italy), for “participat[ing] in the Odebrecht bribery scheme by, among other things, serving as intermediaries for bribe payments and the provision of other things of value that Odebrecht offered and provided to the Panama Government Official.
Yesterday, the DOJ announced that Luis Martinelli Linares pleaded guilty.