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.
That Was Then
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.
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.”
Williams began has remarks as follows.
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.