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It is always a bit humorous (among other things) when a former FCPA enforcement official changes his/her position on a topic when they leave the government and go into or back into private practice (as nearly all do).

While at the DOJ, Daniel Kahn (like other FCPA enforcement officials) was a big proponent of voluntary disclosure.

However, in this Law360 article, commenting on recent DOJ policy charges (see here for the prior post) Kahn stated that the discount for companies that self-disclose is a nice reward, but that there is still a question about whether it will incentivize companies to report if they were otherwise not inclined to disclose or cooperate.

“If a company had made the affirmative decision not to do so despite the significant carrots already contained in the Corporate Enforcement Policy, it seems unlikely that the additional discount, by itself, will be a game-changer,” Kahn said in an email.

He added that it will be critical to see how the Criminal Division applies the new criteria in practice, noting that the requirements seem fairly onerous in the aggregate. He also pointed to lingering questions raised by the updates, including the definition of an “immediate” disclosure and the difference between full and “extraordinary” cooperation.

“Until there is some clarity around these terms and how the Division will apply the policy, companies with aggravating circumstances may be reluctant to voluntarily self-disclose misconduct,” Kahn said.

Just Saying

This recent Law360 article titled “White Collar Attys Brace for More Latin America FCPA Action” asserts:

“Of the two dozen FCPA enforcement actions that the U.S. Department of Justice handled last year, 14 of the cases, or nearly 60%, involved Latin America, according to a list of cases compiled by the DOJ. In 2021, when the Biden administration announced a crackdown on corruption in the region, about 65% of the DOJ’s FCPA cases had Latin America connections, up slightly from 58% in 2020, but a more significant increase from about 50% throughout 2017, 2018 and 2019.

The pace of FCPA enforcement doesn’t appear to be slowing in 2023, which kicked off with federal prosecutors announcing that a grand jury in Miami indicted a sitting Venezuelan Supreme Court justice accused of accepting about $10 million in bribes.”

However, most of these “FCPA” enforcement actions – including the recent enforcement action against the Venezuelan Supreme Court justice – are not FCPA enforcement actions. As highlighted in this prior post, more than half of the individual actions since 2018 on the DOJ’s FCPA website are non-FCPA offenses in connection with alleged foreign bribery schemes – more often than not conspiracy to commit money laundering and money laundering with a few “other” offenses (such as mail and wire fraud, visa fraud, interstate travel in connection with racketeering, and tax offenses).

Call these enforcement actions what you want, but they are not FCPA enforcement actions.

The FCPA is a specific statute with specific elements.

If an “FCPA enforcement action” is to mean anything – an “FCPA enforcement action” is an enforcement action that actually charges FCPA offenses. 

Just saying.

It’s pretty basic (or at least it should be).

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