This week both Deputy Attorney General Sally Yates and Assistant Attorney General Leslie Caldwell gave remarks about what they, and more importantly the Justice Department overall, now expect from companies that want to receive as much credit as possible if they are embroiled in a Foreign Corrupt Practices Act investigation.
These comments made clear that real, tangible benefits exist to following their remarks so that a company can work towards the best result possible: a declination to prosecute the company.
While this information is not rocket science—or really even new information—both Yates and Caldwell have packaged it in a way that it is clear and direct. It should be the guidepost for any compliance officer who finds himself or herself in a quandary about the steps to take with the U.S. government if an FCPA allegation is raised inside an organization. The bottom line is when these ladies talk FCPA enforcement and compliance, you should pay heed.
The three steps are (1) voluntarily self-disclose; (2) fully cooperate; and (3) timely and appropriately remediate. Voluntary self-disclosure means within a prompt time after a company becomes aware of an FCPA violation, and it certainly must occur before an investigation—including a regulatory investigation by an agency or department that is underway or imminent. Full cooperation means not only working to discover relevant information about the individuals; it also means full cooperation with any investigation the government will pursue. This includes making witnesses available and providing documents in a timely manner.
The third prong of timely and appropriate remediation starts with imposing suitable discipline on the culpable parties. It also means reviewing and implementing a best practices compliance program, specifically including the new compliance counsel metrics that Caldwell recently announced.
That information, laid out this week by Yates and Caldwell, coupled with Caldwell’s earlier remarks on the compliance counsel metrics, spells out (with the most precision yet) how to move toward obtaining the best possible outcome if you are embroiled in an FCPA investigation. If your management wants to know what credit it will receive and the roadmap of how to get the best possible result, the Justice Department has laid it out for you.