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Secret FCPA Enforcement

The DOJ’s Foreign Corrupt Practices Act Guidance press release (here) states that the Guidance “is an important illustration of [the DOJ’s] transparency.”  Likewise, at the Guidance press conference (see here for the prior post), Assistant Attorney General Lanny Breuer stated that the DOJ strives to be “transparent” in its FCPA enforcement.  A few days later, in a speech to an FCPA audience (see here), Breuer again stated that the FCPA Guidance was a “vivid example” of the DOJ’s committment to transparency and that the Guidance is “perhaps the boldest manifestation of [the DOJ’s] transparent approach to [FCPA] enforcement.”

While reading the FCPA Guidance in November, I couldn’t help but notice two things.

First, footnote 379 of the Guidance states as follows.  “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.”

Second, page 75 of the Guidance suggests that the DOJ has used non-prosecution agreements in individual FCPA-related case (e.g., “If an individual complies with the terms of his or her NPA, namely, truthful and complete cooperation and continued law-abiding conduct, DOJ will not pursue criminal charges.”  The Guidance also states that “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).  This statement suggests that when an NPA is with an individual for FCPA-related offenses, the agreement is not made public.

The Guidance statements on secret FCPA enforcement confirmed whispers I’ve heard from others on this topic.

Beginning on November 21st, I began seeking answers from the DOJ’s press office (from an individual who previously has responded to my e-mails), as to the following two questions.

As to the first issue above, I asked the DOJ to “please list specific instances in which the DOJ ‘agreed to DPAs with companies that were not filed with the court’ and the year in which DOJ stopped this practice.”

As to the second issue above, I asked the DOJ to “please confirm that the DOJ has used NPAs to resolve [individual] FCPA-related cases and [to] provide the specific number of instances in which the DOJ has done so, including the year.”

No response.

Follow-up e-mails were sent to the DOJ press office (again to an individual who previously has responded to my e-mails) on November 28th and December 5th.

No response.

On December 12th, I e-mailed a DOJ FCPA enforcement attorney (an individual who previously has responded to my e-mails) seeking answers to my two questions.

No response.

So much for that transparency thing.

The DOJ’s secret FCPA enforcement remains a mystery.

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