The Justice Department’s new FCPA Corporate Enforcement Policy has altered the balance between disclosure and non-disclosure of FCPA violations. How is that for a profound grasp of the obvious? All kidding aside, the question is how much has the balance been changed? I am not sure there will be a significant increase in the number of companies deciding to seek the benefits under the new...
The Justice Department has touted its efforts to bring greater transparency to FCPA enforcement. There is no question that in the last five years the Justice Department has moved the needle – the FCPA Guidance issued in 2012; the release of the April 5, 2016 Pilot Program; the Evaluation of Corporate Compliance Programs issued in February 2017; the release of letters confirming declinations awarded to...
The Justice Department recently resolved two separate FCPA investigations under its Pilot Program. To be sure, DOJ’s resolution of these two matters reinforces the real and tangible benefits of its Pilot Program. Linde In the first case involving Linde North America Inc. and Linde Gas North America (“Linde”), two private New Jersey companies that are subsidiaries of a public German company, the Justice Department issued...
We all understand that issues are not black and white, meaning there are areas of gray when analysis and cost-benefits need to be weighed. Lawyers are regularly identifying legal risks and applying such risks to specific courses of action. Depending on the countervailing considerations, lawyers can recommend moving forward in the face of a specific risk. Much has been written (including on this blog) about...
The Justice Department’s FCPA enforcement and remediation focus on supervisory personnel is an interesting development. On the one hand, DOJ has been slow to bring individual criminal enforcement actions for FCPA violations. At the same time, they are flirting with a potential new enforcement approach – a criminal prosecution for circumventing internal controls without proof of bribery. However, FCPA prosecutors appear to be gun-shy after...
The world of science fiction can be exhilarating. If you ever read The Foundation Trilogy or Martian Chronicles, you know what I mean. The concept of parallel universes has always been an intriguing idea where believers can aspire to correct events in one universe by fantasizing about their own life in the parallel universe. How I am going to twist this concept into a compliance...
The Justice Department has a lot to be proud about when it comes to its FCPA enforcement program. In one area in particular – promoting effective ethics and compliance strategies – DOJ’s FCPA prosecutors have played a leadership role in promoting ethics and compliance programs. When reviewing the history of compliance, most practitioners point to the impact of the Sentencing Guidelines as the most significant...
Returning to the FCPA Pilot Project requirements for timely and appropriate remediation, the Justice Department added three new elements, one of which reinforces the CCO “independence” requirement. The two other elements for an effective ethics and compliance program focus on the qualifications and compensation of compliance officers. First, with respect to the structure of the company’s compliance program, the Justice Department listed the reporting structure...
The Justice Department has raised the stakes on anti-corruption compliance. In other words, DOJ prosecutors expect companies to have more sophisticated and mature compliance programs. If a company walks into the Justice Department to begin the voluntary disclosure process, the company better have a mature compliance program. If the company presents only a paper program that has not been “operationalized,” the company can expect a...
With the new incoming administration, everyone is busy predicting major changes in DOJ FCPA enforcement. I do not share this view. Frankly, FCPA enforcement is more bipartisan than other controversial enforcement programs (e.g. civil antitrust and merger enforcement), and DOJ’s FCPA program is very profitable. While there may be a renewed effort by the Chamber of Commerce to raise FCPA reform again, I do not...
