FCPA: DOJ Revises Policy to Encourage Self-Disclosures
A couple weeks ago, the DOJ revised its FCPA “Corporate Enforcement Policy” to encourage more self-disclosures to the Department. Here’s an excerpt from an O’Melveny memo that describes the change:
The DOJ eliminated language that appeared to require companies, in disclosing conduct, to characterize that conduct as a violation of criminal law. The DOJ also clarified that companies, when identifying information not in their possession, need only identify evidence actually known to the companies at the time. The changes respond to concerns raised by companies and the defense bar about language in the CEP, and reflect the current Administration’s push to make DOJ policy towards corporate enforcement more reasonable.
While the policy doesn’t apply to SEC Enforcement, the memo does note that the DOJ’s Criminal Division has expanded the CEP beyond FCPA cases, and stated that it will act as non-binding guidance in Criminal Division cases involving healthcare, financial fraud, and other violations.
A Nixon Peabody memo blacklines the revisions – and explains they could be interpreted to encourage companies to share more information at an earlier stage of internal investigations in order to get full cooperation credit.
-Liz Dunshee, TheCorporateCounsel.net December 11, 2019
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