FCPA / Anti-Corruption

As we discussed in last week’s blog post, on November 29, 2017, Deputy Attorney General Rod J. Rosenstein made remarks at the American Conference Institute’s 34th International Conference on the Foreign Corrupt Practices Act (FCPA) recognizing the success of the FCPA Enforcement Plan and Guidance (commonly referred to as the FCPA “Pilot Program”),

In November, the US Circuit Court for the Second Circuit declined to rehear en banc its July 19, 2017 decision in United States v. Allen, which recognized the testimony of a criminal defendant that is compelled by law in a foreign jurisdiction cannot be used, either directly or indirectly, as evidence against him at

Yesterday, in remarks made at the 34th International Conference on the FCPA, Deputy Attorney General Rod J. Rosenstein recognized the success of the FCPA Pilot Program and announced a revised FCPA Corporate Enforcement Policy geared at “increas[ing] the volume of voluntary disclosures” and “enhanc[ing] the [DOJ’s] ability to identify and punish culpable individuals.”  A transcript of Mr. Rosenstein’s remarks can be found here.

Most importantly, the policy – which has been formally incorporated into the United States Attorneys’ Manual and is limited to FCPA cases – creates the presumption that a company meeting all standards relating to voluntary self-disclosure, full cooperation, and timely and appropriate remediation will have their case resolved through a declination “absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.” Under the policy, aggravating circumstances include (but are not limited to):
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In June 2017, the DOJ released the first two corporate FCPA resolutions since the new administration took office. In both cases, the DOJ issued declination letters “consistent with” the FCPA Pilot Program and required the disgorgement of associated gains.  In one of the two instances, the declination letter also required the forfeiture of funds withheld by the company from foreign government officials involved in the alleged wrongdoing.  Neither company is a US “issuer”; thus, unlike in some of the early Pilot Program declinations, there was no SEC disgorgement.

Many FCPA commentators have speculated on the reasons for the slowdown in corporate FCPA enforcement since the new administration took office. We do not intend to enter into that debate here, except to note that we continue to see robust DOJ and SEC activity at the investigation stage.  And, as we noted in our 2017 FCPA Mid-Year Review, final resolutions of ongoing matters may be delayed as a result of the slow pace to date of confirming senior DOJ and SEC officials to permanent enforcement posts.

Despite the slowdown in certain aspects of enforcement, however, the recent declinations are interesting for a number of reasons. First, the DOJ appears at least to remain committed to clearing longstanding investigations out of its inventory.  The DOJ issued the first declination, dated June 16, 2017, to Linde North America Inc. and Linde Gas North America Inc. (collectively “Linde”) relating to conduct that dated to 2006 and had been under investigation for a substantial period of time. 
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On July 19, 2017, Steptoe’s Matthew Herrington and Brady Cassis co-authored a piece titled “Recent Settlements Reveal the Hidden ABAC Risks and Rewards of Internal Audits” for The Anti-Corruption Report.  In the article, the authors unpack the recent settlements revealing several strategies for successfully managing internal audits.

For more information, the full article can

On June 5, 2017, the United States Supreme Court unanimously held that disgorgement in SEC enforcement actions operates as a penalty in Kokesh v. Securities and Exchange Commission.  This means that disgorgement is subject to the federal five-year statute of limitations under 28 U.S.C. §2462. The Kokesh decision settled a dispute between the US

On July 6, 2017, Steptoe’s Matthew Herrington and Brady Cassis coauthored a piece in Compliance Complete on the International Organization for Standardization (ISO) standard.  The article breaks down how the standard has fared in its first nine months, and provides straightforward ways compliance officers can use the ISO standards to bolster their existing anti-corruption programs.

On June 29, 2017, Steptoe published its US Foreign Corrupt Practices Act (FCPA) Mid-Year Review. There was a flurry of enforcement actions in the beginning of January to start off 2017, including some major resolutions that broke new ground in international anti-corruption enforcement.  After the change in administration on January 20, 2017, however, there were

The year 2016 ushered in a flurry of activity in global anti-corruption and US Foreign Corrupt Practices Act (FCPA) enforcement.  After 2015, when the US Department of Justice (DOJ) and US Securities and Exchange Commission (SEC) brought their lowest number of enforcement actions in a decade, 2016 not only saw the largest number and highest

On October 7, the World Bank Group (the Bank) Integrity Vice Presidency (INT) released its Annual Update for the 2016 Fiscal Year (the FY2016 Report or the Report).  This Report emphasizes INT’s endeavor to protect Bank-funded procurement projects in the immediately preceding fiscal year, and sets out INT’s current and future policy, investigation, and enforcement