The Department of Justice (DOJ) has incorporated a new FCPA Corporate Enforcement Policy (“Policy”) into the United States Attorneys’ Manual. The new Policy builds upon the FCPA Pilot Program, which was implemented in April 2016. The Pilot Program urged companies to self-disclose bribery in exchange for vastly reduced criminal fines and federal oversight. The Policy, which can be found here, builds upon the Pilot Program. Perhaps most importantly, it enables companies to better predict when self-disclosure will be rewarded with a declination.
Key takeaways from the Policy include:
Because a declination is appropriate for first-time offenders that uncover an isolated incident of bribery by a low-level employee, the Policy may affect how companies approach an internal investigation. Facts may exist that enable an investigator to quickly rule out the involvement of executive management, or to quantify the profits of the alleged misconduct. By answering those questions in the early stages of an investigation, a company will be better positioned to make an informed decision concerning the possible benefits of self-disclosure within the time allotted by the Policy to receive full cooperation credit, including a declination.
The Policy’s effect on cooperation and self-disclosure decisions remains to be seen, and will be driven largely by how the DOJ implements the Policy in specific cases going forward. We will continue to monitor developments.
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