On Nov. 29, 2017, the U.S. Department of Justice (DOJ) released a new enforcement policy for cases brought under the U.S. Foreign Corrupt Practices Act (FCPA), the primary U.S. law governing bribery of foreign government officials. The new FCPA Corporate Enforcement Policy is largely a continuation of the FCPA pilot program, which was launched in April 2016 and provided incentives for companies to self-disclose FCPA violations, cooperate with government investigations and remediate misconduct. However, the new policy goes further than the pilot program in several respects in its efforts to encourage companies to self-disclose FCPA misconduct.
There are a few key takeaways from the new policy. First, the new policy removes the temporariness of the pilot program and codifies it. Second, the new policy takes the pilot program further in important respects, including the fact that self-disclosing companies now have a presumption in favor of a declination of prosecution, although there are important qualifications on that presumption, such that it may not be operative in some cases, particularly larger ones or at companies that have a prior FCPA resolution. Third, regardless of the criminal resolution, companies are still required to disgorge profits tied to the misconduct. Traditionally, the government has taken a broader view of what constituted profits than disclosing parties have. Fourth, the new policy reflects the DOJ’s continuing commitment to pursuing individual wrongdoers. Finally, despite the discussion in the new policy of the DOJ’s flexibility in awarding cooperation credit, the DOJ still expects extensive cooperation from companies, which can be quite onerous.
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