The DOJ’s new “FCPA Corporate Enforcement Policy” states:
“When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated … there will be a presumption that the company will receive a declination [subject to a requirement to pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct] absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”
As highlighted in this prior in-depth Q&A style post, the enforcement policy does not define or otherwise provide comment on what some of the key terms relevant to the aggravating circumstances actually mean.
Thus, on December 4th I e-mailed the DOJ the following questions:
Last week’s announcement of the new “FCPA Corporate Enforcement Policy” set forth the following basic framework.
When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated, all in accordance with the standards set forth below, there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.
A couple of questions.
Who constitutes “executive management” of the company?
What does “significant profit” mean?
Does “criminal recidivism” refer to under the FCPA or any criminal statute? Regardless of the answer, does “criminal recidivism” refer to any form of DOJ resolution such as (in addition to actual plea agreements) deferred prosecution agreements, non-prosecution agreements, and “declinations with disgorgement.”?
Later on December 4th, I received the following non-response response from the DOJ press office.
“We decline to comment beyond what we have made public. Thank you.”
