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If The DOJ’s FCPA Voluntary Disclosure Program Is Successful, Why Is It So Unsuccessful?

scratchhead

In her recent speech in connection with release of a memo to DOJ personnel titled ““Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group” Deputy Attorney General Lisa Monaco stated:

“Voluntary self-disclosure programs, in various Department components, have already been successful. Take, for example, the Antitrust Division’s Leniency Program, the Criminal Division’s voluntary disclosure program for FCPA violations, and the National Security Division’s program for export control and sanctions violations.”

However, if the DOJ’s FCPA voluntary disclosure program has been “successful,” why is it so unsuccessful as measured by the principal goal of the program as identified by the DOJ?

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Assistant AG Kenneth Polite On Deterrence And Compliance Certifications

Polite

It is mid-September.

Thus, consistent with historical practices, DOJ officials are out giving speeches about DOJ policy. Previous posts here and here have focused on the recent release of the so-called Monaco Memo and this post highlights a recent speech by Assistant Attorney General Kenneth Polite.

In addition to discussing the recent Monaco Memo, Polite touched upon the following topics: deterrence and compliance certifications.

Deterrence

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Thoughts On The Monaco Memo

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This previous post summarized Deputy Attorney General Lisa Monaco’s memo to DOJ personnel titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group.”

This post provides analysis and commentary.

The memo – while technically an internal memo to DOJ personnel – is obviously much more than that as it (and previous iterations) was publicly released and serves as a de facto DOJ policy document.

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Deputy Attorney General Monaco Releases A Memo Titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group”

Monaco

Last week Deputy Attorney General Lisa Monaco issued a 15 page memo to DOJ personnel titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group.” (See here for Monaco’s related speech and see here for a recent speech by Assistant Attorney General Kenneth Polite which discussed, in part, the memo as well).

A future post will provide analysis and commentary regarding the memo, but first this post summarizes the memo.

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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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