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A Game Of Cat And Mouse


The DOJ has long talked about how “greater transparency benefits everyone” (see here).

In this May 2017 speech, a high-ranking DOJ official talked about “the importance of transparency in our anti-corruption prosecutions.”

In this August 2017 speech, a high-ranking DOJ official stated: “We are taking additional steps to enhance our enforcement of the FCPA against both corporate and individual actors, and to promote transparency in doing so.”

In announcing its November 2017 FCPA Corporate Enforcement Policy (see here) the DOJ talked about greater “clarity about our decision-making process” and the “advantage of the policy for businesses is to provide transparency about the benefits available if they satisfy the requirements.”

Against this backdrop, if the DOJ is truly committed to transparency and clarity in the FCPA context, why does it continue to play cat and mouse games with the business community about terms and conditions it uses in describing its own enforcement policies?

As highlighted in this recent post regarding the Credit Suisse enforcement action, DOJ stated in the NPA: “the company did not receive full cooperation credit because its cooperation was reactive, instead of proactive” and the post wondered aloud what that meant.

On July 18th, I e-mailed the DOJ press office the following question:

“To provide greater clarity to the business community, can you provide further specifics as to what the DOJ meant by reactive cooperation vs. proactive cooperation.”

The question simply asked the DOJ to clarify (remember the DOJ is all about “clarity about our decision-making process”) words it used in an FCPA enforcement action.

The response from the DOJ:

“We’ll decline to elaborate.”

This was not just some isolated example.

As highlighted in this prior post, in April 2017 a high-ranking DOJ official said that the DOJ’s “intent is for our FCPA investigations to be measured in months, not years.” Wanting to assess this statement vs. actual practice, as highlighted in this prior post in July 2017 I asked the DOJ a very basic factual question regarding two then recent FCPA enforcement actions. The DOJ’s response was:

“The department will decline to comment.”

As highlighted in this prior post in December 2017 I asked the DOJ to clarify various terms it used in its FCPA corporate enforcement policy. As highlighted in the prior post, the DOJ’s response was:

“We decline to comment beyond what we have made public.  Thank you.”

Most recently, as highlighted in this prior post, I invited the DOJ’s FCPA Unit Chief (Daniel Kahn) to be a guest on the FCPA Flash podcast to answer various factual questions regarding FCPA enforcement. The DOJ’s response was:

“Dan Kahn respectfully declines interview.”

If you are scoring at home, the box score reads: decline, decline, decline, and decline.

In short, the DOJ can talk all it wants about transparency and clarity regarding its FCPA enforcement program, but it continues to play a cat and mouse game with the corporate community  including as to terms and conditions it has used in describing its own enforcement policies.

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