Yesterday, Deputy Attorney General Rod Rosenstein announced revisions to the U.S. Department of Justice's FCPA Corporate Enforcement Policy (the "Policy").  According to Mr. Rosenstein, the Policy is an attempt to improve upon the FCPA Pilot Program initiated in 2016, by increasing "transparency about the benefits available if [companies] satisfy the requirements" of the Policy, and by specifying "what we mean by voluntary disclosure, full cooperation, and timely and appropriate remediation."1   The Policy is now incorporated into the United States Attorneys' Manual.

The Policy places companies that choose to cooperate with the Department of Justice ("Department") in connection with FCPA violations into one of three categories, and assigns benefits to each:

  1. Companies that have voluntarily self-disclosed an FCPA violation, fully cooperated with the Department's investigation, and timely and appropriately remediated the violation––as those terms are defined in the Policy––are entitled to a presumption that the Department will decline to prosecute.  If these requirements were met under the previous Pilot Program, the Department would only consider a declination of prosecution.  As noted below, however, a declination under the Policy continues to come at a cost: the company must pay "all disgorgement, forfeiture, and /or restitution resulting from the misconduct at issue."2
  2. Notwithstanding a company's satisfaction of these requirements (self-disclosure, cooperation, and remediation), "aggravating circumstances"3  may still require "a criminal resolution."  In those cases, the Department will recommend "a 50% reduction off of the low end" of the U.S. Sentencing Guidelines' fine range (except in the case of a recidivist).4   Previously, under the Pilot Program, the Department offered "up to a 50%" reduction.5   Additionally, under the Policy, the Department "generally will not require the appointment of a monitor if the company has implemented an effective compliance program."6   The Pilot Program provided less certainty with respect to monitors, stating only that the Department "generally should not" require a monitor under the same circumstances.
  3. Companies that do not voluntarily self-disclose, but later choose to fully cooperate and remediate the misconduct, will be entitled to a recommended 25% reduction off the low end of the U.S. Sentencing Guidelines' fine range.  The Pilot Program provided that the Department would "accord at most a 25% reduction" under these circumstances.

The Policy continues to use the Pilot Program's definitions of voluntary self-disclosure, cooperation, remediation, and other key terms.  Importantly, the Department's view of what constitutes "voluntary self-disclosure" and "full cooperation" reaffirms the Department's enhanced focus on "individual accountability for corporate wrongdoing," as described in the Yates Memo of 2015.  The Policy continues to require cooperating companies to disclose "all relevant facts about all individuals involved in the violation of law."7   Mr. Rosenstein also emphasized this point in his comments announcing the Policy, observing that "[i]t makes sense to treat corporations differently than individuals, because corporate liability is vicarious; it is only derivative of individual liability."8   

While Mr. Rosenstein characterized these revisions as "new policy," they largely restate the terms and definitions of the prior Pilot Program, albeit with a more definitive (and generally more favorable) statement of the benefits of cooperation.  In this respect, the Department seeks to provide more certainty concerning the benefits a company may anticipate if it elects to self-disclose and fully cooperate.  Mr. Rosenstein was careful to note, however, that the Policy is intended to "help[] guide [the Department's] exercise of discretion," makes no guarantees, and cannot eliminate all uncertainties as to outcomes.9  

Additionally, the most notable aspect of the Policy––the "presumption" that a company will receive a declination if it self-discloses, cooperates and remediates––remains contingent upon yet another requirement: disgorgement, forfeiture, and/or payment of restitution in connection with the unlawful conduct.  Thus, putting aside the controversy surrounding the Department's relatively recent practice of offering "declination-with-disgorgement," companies will still need to make a potentially sizeable payment to the government in order to receive a declination under the Policy. 

1  U.S. Dept. of Justice News Release, Deputy Attorney General Rosenstein Delivers Remarks at the 34th International Conference on the Foreign Corrupt Practices Act (Nov. 29, 2017), https://www.justice.gov/opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-34th-international-conference-foreign [hereinafter Rosenstein Remarks].

2  U.S. Attorneys' Manual ("USAM") 9-47.120 (Nov. 2017), https://www.justice.gov/usam/usam-9-47000-foreign-corrupt-practices-act-1977#9-47.120.

3  The Policy provides only examples of what it may consider aggravating circumstances: involvement of executive management in the misconduct, significant profit to the company as a result of the misconduct, pervasive misconduct within the company, and criminal recidivism. 

4  Id.

5  U.S. Dept. of Justice, Crim. Division, The Fraud Section's Foreign Corrupt Practices Act Enforcement Plan and Guidance (April 5, 2016), https://www.justice.gov/archives/opa/blog-entry/file/838386/download (emphasis added).

6  USAM 9-47.120 (emphasis added).

Id.

Rosenstein Remarks, supra note 1.

9  Id.

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