In running this site for over 16 years, I don’t even recall how many DOJ policy memos have been covered here.
The short answer is many.
Many, many.
Some have been specific to the FCPA, some have been more general (yet FCPA relevant), some have been focused on specific topics.
In the latest example, earlier this week the DOJ released yet another non-binding policy document titled “Corporate Enforcement and Voluntary Self-Disclosure Policy.”
In summary fashion it states (as numerous prior DOJ memos have generally stated):
“The Department of Justice (Department) is committed to prosecuting corporate criminal conduct firmly, fairly, and efficiently. To do so, the Department seeks to incentivize responsible corporate behavior, encouraging companies to invest in effective compliance programs, voluntarily self-report potential misconduct, meaningfully cooperate with law enforcement, and make good-faith efforts to rectify wrongdoing. This aligns the Department’s interest in swift criminal justice with the interests of companies, shareholders, and other stakeholders in good corporate governance and the public’s interest in rooting out fraud and misconduct.
The Department’s Corporate Enforcement and Voluntary Self Disclosure Policy (CEP) applies to all corporate criminal matters handled by the Department, except for violations of 15 U.S.C. §§ 1- 38 [monopolies and combinations in restraint of trade].
The CEP draws on decades of experience across the Department and creates incentives for companies to disclose misconduct to the Department, enabling the government to investigate and hold wrongdoers accountable more quickly. This policy is designed to: (1) drive early, voluntary self-disclosure of criminal conduct; (2) promote timely and effective enforcement of criminal laws, including holding culpable individuals accountable; (3) reduce harm; (4) facilitate prompt remedial action, including requiring companies to compensate victims and address corporate deficiencies; (5) help ensure consistency across the Department; and (6) transparently describe the Department’s policies and decision-making.
All resolutions under this provision must be approved by the Assistant Attorney General for the relevant Division and/or the United States Attorney for the relevant district, or the individual serving in that capacity, in coordination with the Office of the Deputy Attorney General, as required by the Justice Manual (JM), and the Criminal Division where specifically required by JM.
To minimize uncertainty for companies that self-report, prosecutors must endeavor to obtain relevant facts and circumstances about the disclosure in order to make a determination as to eligibility for Part I and Part II of this Policy, and, where appropriate, are encouraged to inform the company as soon as practicable.”
Part I is titled “Declination Under the CEP” which of course is not a declination, just an enforcement action by another name as qualifying companies “will be required to pay all disgorgement/forfeiture as well as restitution/victim compensation payments resulting from the misconduct at issue.”
Part II is titled “Near Miss” Voluntary Self-Disclosures or Aggravating Factors Warranting Resolutions.”
Like prior DOJ non-binding policy documents, this latest version is full of vague and ambiguous terms that the DOJ has discretion to interpret such as “good faith,” “earliest possible time,” “reasonably prompt time,” “timely, truthfully, and accurately,” “proactively cooperate,” “effective,” and “appropriate.”
