Last week the Justice Department announced the culmination of several ongoing initiatives into a new pilot program around Foreign Corrupt Practices Act enforcement. Meanwhile, the Fraud Section of the Criminal Division of the Department released a written document, entitled “The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance,” more fully laying out the specifics of this pilot program and providing more background and information for the compliance practitioner.
The Press Conference and the Guidance make clear that in the FCPA world, when the Justice Department talks, chief compliance officers should listen. The upshot is the Justice Department wants more self-disclosure from companies regarding FCPA violations and is willing to provide greater benefits to companies which (1) self-disclose; (2) fully cooperate during the investigation and (3) fully remediate their compliance program going forward. They also want companies to turn over more information on culpable individuals.
If a company meets all three criteria, as fully laid out in the guidance, it can receive up to a 50 percent discount in its penalty from the bottom end of the Federal Sentencing Guidelines. If a company does not self-disclose but does fully cooperate and remediate, it can receive up to a 25 percent discount in its penalty from the bottom end of the Sentencing Guidelines. This will last for one year when the Justice Department will evaluate its effectiveness.
This announcement appears to be the culmination of a series of public announcements in policy changes and modifications beginning with the Yates Memo last September and continuing through the appointment of the first Justice Department Compliance Counsel, Hui Chen in November and through the speeches given by Leslie Caldwell, Sally Yates and Hui Chen late last year about their expectations around cooperation and what constitutes an effective compliance program. All of these are brought together with the pilot program and specified in the guidance.
When the Justice Department speaks about the FCPA, you should listen.
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