Department of Justice officials often talk about the importance of transparency. For instance, officials have stated that “greater transparency benefits everyone” and that the “the Criminal Division stands to benefit from being more transparent ..” (See here).
Indeed, “the DOJ’s and SEC’s continuing efforts to provide increased transparency” was one of the reasons for the recent release of the Second Edition of the FCPA Guidance.
A close read of the FCPA Guidance makes it clear that not all DOJ FCPA enforcement actions are in the public domain. Some are secret. Yet, as highlighted below, when asked to provide certain basic information about these secret FCPA enforcement actions the DOJ declined.
Page 75 of the Guidance states “under a deferred prosecution agreement, or a DPA as it is commonly known, DOJ files a charging document with the court …”. This clause has a footnote which states: “Historically, DOJ had, on occasion, agreed to DPAs with companies that were not filed with the court. That is no longer the practice of DOJ.”
Page 76 of the Guidance states:
“Unlike a DPA, an NPA is not filed with a court but is instead maintained by the parties. In circumstances where an NPA is with a company for FCPA-related offenses, it is made available to the public through DOJ’s website.” (emphasis added).
Given the underlined clause, it is fairly obvious that NPAs are used to resolve individual FCPA enforcement actions, but these enforcement actions are not made available to the public through the DOJ’s website. I’ve heard whispers about this from FCPA practitioners for years. Moreover, sitting on my desk right now is an official government document (in my possession in connection with an expert engagement) referring to an individual previously signing an NPA in relation to a corporate enforcement action.
On July 15th, I sent the following e-mail to the DOJ press office:
“Set forth below are a few questions regarding information in the recently released Second Edition of “A Resource Guide to the U.S. Foreign Corrupt Practices Act.”
At pg. 75, the Resource Guide states: “Under a Deferred Prosecution Agreement, or a DPA as it is commonly known, DOJ files a charging document with a court …”. This clause has a footnote which states: “Historically, DOJ had, on occasion, agreed to DPA’s with companies that were not filed with the court.” Please provide or otherwise identify FCPA DPA’s “with companies that were not filed with the court.”
At pg. 76, the Resource Guide states: “Unlike a DPA, an NPA is not filed with a court but is instead maintained by the parties. In circumstances where an NPA is with a company for FCPA-related offenses, it is made available to the public through DOJ’s website.” The underlined language suggests that the DOJ also resolves FCPA matters with individuals through NPAs, but those agreements are not available to the public through DOJ’s website. Please provide or otherwise identify FCPA NPAs with individuals that are not on the DOJ’s website.”
On July 17th, Peter Carr (DOJ Public Affairs Specialist) responded:
“With respect to the footnote you reference on page 75, this footnote was in the original FCPA Guide released in 2012 and reads in full, “Historically, DOJ had, on occasion, agreed to DPAs with companies that were not filed with the court. That is no longer the practice of DOJ.” It is the FCPA Unit’s consistent practice to provide a copy of the DPA to the court in every case, and make every DPA (and every other corporate resolution) available on its website. See https://www.justice.gov/criminal-fraud/enforcement-actions.
With respect to the language you reference on page 76, this language was also in the original FCPA Guide. The FCPA Unit does not generally release and make public non-prosecution agreements with individuals, as such agreements may involve ongoing cooperation and/or safety concerns that would be negatively impacted by public disclosure. In addition, it is DOJ policy to not publicly disclose uncharged persons absent some significant justification. See, e.g., Justice Manual 9-11.130 (https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.130); Justice Manual 9-16.500 (https://www.justice.gov/jm/jm-9-16000-pleas-federal-rule-criminal-procedure-11#9-16.500); Justice Manual 9-27.760 (https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.760). In certain circumstances, however, non-prosecution agreements with individuals may be made public as part of a public court proceeding, such as a trial.”
I then responded to Carr:
“I know that footnote originally appeared in the 2012 Guidance and that it states in full: ““Historically, DOJ had, on occasion, agreed to DPAs with companies that were not filed with the court. That is no longer the practice of DOJ.” What I am asking is for the DOJ to provide or otherwise identify FCPA DPAs’s “with companies that were not filed with the court.”
I also know that the second portion of my question was addressed in the 2012 Guidance as well. If the DOJ is unwilling to provide or otherwise identify certain FCPA NPAs with individuals, please confirm that the DOJ enters into NPAs with individuals to resolve FCPA offenses that are not on the DOJ’s FCPA website.”
“We’ll decline beyond what I’ve previously provided.”
So there you have it. Mum’s the word from the DOJ regarding its secret FCPA enforcement.
Incidentally, the DOJ never responded when I posed the same general questions after the original FCPA Guidance was released in 2012. (See here). Thus, I am grateful that I actually received a response this time.
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