This recent post discussed the approximate $2.5 million FCPA enforcement action against Gartner based on conduct in South Africa – specifically conduct involving the South Africa Revenue Service (“SARS”).
This post highlights additional issues to consider.
Timeline
As stated in Gartner’s most recent annual report (Feb. 16, 2023):
Even though the government has been encouraging companies to voluntary disclosure Foreign Corrupt Practices Act (and other) issues for approximately 20 years, every few years it seems the DOJ tweaks it voluntary disclosure and related corporate criminal enforcement policy.
The latest example occurred in January 2023. (See here for the prior post).
As long as there have been government programs advocated by government officials, officials have been inclined to proclaim the program a success.
And so it is with the DOJ’s most recent voluntary disclosure revisions.
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.
Recently Deputy Attorney General Lisa Monaco delivered this speech at the American Bar Association National Institute on White Collar Crime.
Topics discussed included: “inspiring a culture of compliance,” “promoting compliance through compensation and clawback programs,” and “accountability.”
Monaco began her speech as follows:
As highlighted in prior posts here and here, in January the DOJ Criminal Division released a Corporate Enforcement and Voluntary Self-Disclosure Policy which “applies to all FCPA cases nationwide and all other corporate criminal matters handled by the Criminal Division.”
As discussed below, the DOJ’s expectation regarding voluntary disclosure is absurd as well as internally inconsistent.
As to the later point, query whether the DOJ has individuals capable of proof-reading to ensure that a policy document is internally consistent.
