Last month, I considered the effects of the Securities and Exchange Commission’s whistleblower program and how it has transformed the dynamics of SEC investigations and enforcement in Foreign Corrupt Practices Act cases. With the now one-year-plus run of the Yates Memo and its incorporation of the memo into the superstructure of the Justice Department’s FCPA Enforcement Pilot Program, it seems to me that these two initiatives have now formally changed the nature of investigations and enforcement of FCPA violations.
At the Society of Corporate Compliance and Ethics (SCCE) 2016 Compliance and Ethics Institute (CEI), Justice Department Principal Deputy Associate Attorney General Bill Baer provided remarks on what constitutes extensive cooperation under the FCPA Pilot Program and, more broadly, what would allow a company to receive a reduction in a fine or penalty. Baer began by stating that credit is only available where an entity has satisfied the requirements of the Yates Memo, which he termed the “Department’s Individual Accountability policy.” To meet this initial threshold, companies who want credit for their cooperation must disclose all facts relating to the individuals involved in the wrongdoing, no matter where those individuals fall in the corporate hierarchy. He stated, “We will not credit cooperation unless this threshold requirement has been met.”
