On November 29, 2017, Deputy Attorney General Rod Rosenstein revealed the implementation of the FCPA Corporate Enforcement Policy (“Enforcement Policy”), which endeavours to supplemental reassure voluntary disclosure of FCPA violations by companies. The Enforcement Policy attempts to elucidate certain viewpoints of the FCPA Pilot Program launched by the Fraud Section in April 2016 and removes its “pilot” status by incorporating the general framework for credit for voluntary disclosure of FCPA violations into the United States Attorney’s Manual (USAM).\u00a0For more information, please read the USAM insert below:<\/p>\n
9-47.120 \u2013 FCPA Corporate Enforcement Policy <\/strong><\/p>\n Due to the unique issues presented in FCPA matters, including their inherently international character and other factors, the FCPA Corporate Enforcement Policy is aimed at providing additional benefits to companies based on their corporate behaviour once they learn of misconduct. When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated, all in accordance with the standards set forth below, there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offence or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.<\/p>\n If a criminal resolution is warranted for a company that has voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated, the Fraud Section:<\/p>\n To qualify for the FCPA Corporate Enforcement Policy, the company is required to pay all disgorgement, forfeiture, and\/or restitution resulting from the misconduct at issue.<\/p>\n If a company did not voluntarily disclose its misconduct to the Department of Justice (the Department) in accordance with the standards set forth above, but later fully cooperated and timely and appropriately remediated in accordance with the standards set forth above, the company will receive, or the Department will recommend to a sentencing court, up to a 25% reduction off of the low end of the U.S.S.G. fine range.<\/p>\n a. Voluntary Self-Disclosure in FCPA Matters <\/em><\/p>\n In evaluating self-disclosure, the Department will make a careful assessment of the circumstances of the disclosure. The Department will require the following items for a company to receive credit for voluntary self-disclosure of wrongdoing:<\/p>\n b. Full Cooperation in FCPA Matters <\/em><\/p>\n In addition to the provisions contained in the Principles of Federal Prosecution of Business Organizations, see <\/em>USAM 9-28.000, the following items will be required for a company to receive credit for full cooperation for purposes of USAM 9-47-120(1) (beyond the credit available under the U.S.S.G.):<\/p>\n Note: Where a company claims that disclosure of overseas documents is prohibited due to data privacy, blocking statutes, or other reasons related to foreign law, the company bears the burden of establishing the prohibition. Moreover, a company should work diligently to identify all available legal bases to provide such documents;<\/p>\n c. Timely and Appropriate Remediation in FCPA Matters<\/em><\/p>\n The following items will be required for a company to receive full credit for timely and appropriate remediation for purposes of USAM 9-47-120(1) (beyond the credit available under the U.S.S.G.):<\/p>\n Cooperation Credit<\/em>: Cooperation comes in many forms. Once the threshold requirements set out at USAM \u00a7 9-28.700 have been met, the Department will assess the scope, quantity, quality, and timing of cooperation based on the circumstances of each case when assessing how to evaluate a company\u2019s cooperation under the FCPA Corporate Enforcement Policy.<\/p>\n \u201cDe-confliction\u201d is one factor that the Department may consider in determining the credit that a company will receive for cooperation. The Department\u2019s requests to defer investigative steps, such as the interview of company employees or third parties, will be made for a limited period of time and will be narrowly tailored to a legitimate investigative purpose (e.g.<\/em>, to prevent the impeding of a specified aspect of the Department\u2019s investigation). Once the justification dissipates, the Department will notify the company that the Department is lifting its request.<\/p>\n Where a company asserts that its financial condition impairs its ability to cooperate more fully, the company will bear the burden to provide factual support for such an assertion. The Department will closely evaluate the validity of any such claim and will take the impediment into consideration in assessing whether the company has fully cooperated.<\/p>\n As set forth in USAM 9-28.720, eligibility for full cooperation credit is not predicated upon waiver of the attorney-client privilege or work product protection, and none of the requirements above require such waiver. Nothing herein alters that policy, which remains in full force and effect. Furthermore, not all companies will satisfy all the components of full cooperation for purposes of USAM 9-47.120(2) and (3)(b), either because they decide to cooperate only later in an investigation or they timely decide to cooperate but fail to meet all of the criteria listed above. In general, such companies will be eligible for some cooperation credit if they meet the criteria of USAM \u00a7 9-28.700, but the credit generally will be markedly less than for full cooperation, depending on the extent to which the cooperation was lacking.<\/p>\n Remediation<\/em>: In order for a company to receive full credit for remediation and avail itself of the benefits of the FCPA Corporate Enforcement Policy, the company must have effectively remediated at the time of the resolution.<\/p>\n The requirement that a company pay all disgorgement, forfeiture, and\/or restitution resulting from the misconduct at issue may be satisfied by a parallel resolution with a relevant regulator (e.g<\/em>., the United States Securities and Exchange Commission).<\/p>\n Public Release: <\/em>A declination pursuant to the FCPA Corporate Enforcement Policy is a case that would have been prosecuted or criminally resolved except for the company\u2019s voluntary disclosure, full cooperation, remediation, and payment of disgorgement, forfeiture, and\/or restitution. If a case would have been declined in the absence of such circumstances, it is not a declination pursuant to this Policy. Declinations awarded under the FCPA Corporate Enforcement Policy will be made public.<\/p>\nI. Credit for Voluntary Self-Disclosure, Full Cooperation, and Timely and Appropriate Remediation in FCPA Matters<\/h3>\n
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II. Limited Credit for Full Cooperation and Timely and Appropriate Remediation in FCPA Matters Without Voluntary Self-Disclosure<\/h3>\n
III. Definitions<\/h3>\n
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IV.\u00a0Comment<\/h3>\n