Acting Assistant Attorney General Argentieri On …
Another day, another speech by a DOJ official.
Recently, Acting Assistant Attorney General Nicole Argentieri delivered this speech in which she discussed the following topics: foreign law enforcement cooperation, corporate cooperation, compensation incentives and clawbacks, voluntary disclosure, and the DOJ’s recent “safe harbor” policy in connection with merger and acquisition activity.
Regarding foreign law enforcement cooperation, Argentieri stated:
What Others Are Saying About The DOJ’s “Safe Harbor” M&A Policy
This prior post highlighted the DOJ’s “New Safe Harbor Policy For Voluntary Disclosures Made In Connection With Mergers and Acquisitions.”
As discussed in the post, 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).
This post highlights various law firm client alerts and updates regarding the policy,
Based on the the below sampling it does not appear that many law firms are impressed with the policy.
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:
That Was Then, This Is Now
To best understand (and place in context) current SEC FCPA enforcement positions and policies, it is useful to understand past SEC FCPA enforcement positions and policies.
The year was 1981, the event was the American Institute of Certified Public Accountants, and the speaker was Harold Williams, the Chairman of the SEC. The speech did not contain the standard disclaimer (i.e. I am just an individual and not speaking on behalf of the SEC), rather Williams specifically stated that his remarks “constitute a statement of the Commission’s policy.”
Williams focused his remarks (here) “solely to one major auditing development of recent years: the accounting provisions of the Foreign Corrupt Practices Act of 1977″ and stated that “the anxieties created by the Foreign Corrupt Practices Act – among men and women of utmost good faith – have been, in my experience without equal.”
Williams tried to damper these anxieties and spoke about the scope of the provisions including when an enforcement action would be warranted.