Many Of The Topics Discussed In The FCPA Guidelines Are Not New
On June 9th, DOJ Deputy Attorney General Todd Blanche issued this memo to the head of the DOJ Criminal Division titled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act.”
At first blush, it may seem like there are many new topics in the Guidelines.
What is perhaps new is that these topics are actually written down in a DOJ policy document, but as highlighted in this prior and future posts, many of the topics discussed in the Guidelines have been happening before our eyes for several years.
For instance, the Guidelines state:
DOJ Talk Over The Years
As highlighted in this prior post, several of the issues discussed in President Trump’s February 10th Executive Order “Pausing” FCPA enforcement had been percolating for many years and discussed by many individuals.
The same is true regarding several of the issues highlighted in the DOJ’s recent policy memo titled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.” (See here for the prior post).
This is particularly true when it comes to the “efficiency” of DOJ investigations.
The recent policy memo states:
Focus, Fairness, And Efficiency: A Closer Look At The DOJ’s “White Collar Enforcement Plan”
Earlier this week, the Department of Justice Criminal Division released various policy materials relevant to corporate enforcement.
Included in the materials was this memo to Criminal Division Personnel with a subject line “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.”
The memo touches upon many issues long the focus of prior DOJ policy memos such as individual accountability, incentivizing voluntary disclosure and cooperation, the goal of efficient investigations, and the use of monitors.
The memo begins:
Dr. Reddy’s FCPA Scrutiny Is Approaching Five Years
Remember when a high-ranking Department of Justice official declared in 2017 that it was the intent of the DOJ “for our FCPA investigations to be measured in months, not years.” (See here for the prior post).
The statement was laughable when made and remains laughable approximately eight years later because since the statement was made FCPA scrutiny tends to average approximately 4-5 years. (See here).
Several current instances of FCPA scrutiny have dragged on for years including the scrutiny of Dr. Reddy’s Laboratories Ltd., (an India-based pharmaceutical company with ADRs listed on the New York Stock Exchange).
Like Prior Years, The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2024
This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2024.
Continuing with the 2024 FCPA statistical feast, this post follows the chronology of scrutiny to enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.
That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4.5 years was the approximate median length of time companies that resolved FCPA enforcement actions in 2024 were under scrutiny.
Before highlighting the statistics, some general background.