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

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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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The Percentage Of Corporate DOJ And SEC FCPA Enforcement Actions That Result From A Voluntary Disclosure

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For at least 15 years the government has encouraged business organizations to voluntary disclosure conduct that violates the Foreign Corrupt Practices Act.

In more recent years, in 2012 the government sought in the FCPA Guidance to entice business organizations to voluntarily disclose by, among other things, highlighting six “anonymized examples of matters DOJ and SEC have declined to pursue” where a common thread was voluntary disclosure. In April 2016, it was the DOJ’s pilot program, an effort – in the words of the DOJ –  to “encourage voluntary corporate self-disclosure.” Thereafter, it was the November 2017 DOJ FCPA Corporate Enforcement policy which – in the words of the DOJ – was intended to provide “guidance and greater certainty for companies struggling with the question of whether to make voluntary disclosures of wrongdoing…”.

But what do the numbers show? What percentage of DOJ and SEC enforcement actions are the result of a voluntary disclosure? The below post provides the answers.

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