Over the past few posts I have been exploring the Department of Justice’s (DOJ) new policy regarding Foreign Corrupt Practices Act (FCPA) enforcement. Deputy Attorney General Rod Rosenstein, in a speech, called it the FCPA Corporate Enforcement Policy and stated that it is now “incorporated into the United States Attorneys’ Manual.” I have considered what it means for the compliance practitioner and compliance profession going forward. Today, I want to conclude this series with some final thoughts.
The first observation is the process the DOJ went through to come up with this new Policy. The impetus would seem to have been the expiration of the one year FCPA Pilot Program in April 2017. At the conclusion of this one year experiment, the DOJ announced it would assess the Pilot Program. It not only assessed the Pilot Program but made changes which I think make the new Policy even more effective than the Pilot Program. In addition to the enforcement aspects of increasing the discount available to companies which met the requirements of the Pilot Program down to a 100% discount, from a Pilot Program high of a 50% discount; the DOJ made the presumption companies would receive a full declination as the default response to meeting the prescripts of the new Policy. Nowhere else under federal law is there such a presumption when there is a violation of federal criminal law.
Yet beyond the presumption of a full declination, there are additional benefits to companies which fail to disclose or have aggravating factors. Mike Volkov noted these additional benefits consisted of “a guarantee of a 50 percent discount and the probable avoidance of a corporate monitor.” Further, “In the event that a company does not qualify for a voluntary disclosure but cooperates and remediates its compliance program, the company can still earn up to a 25 percent discount from the bottom of the Sentencing Guidelines range.”
As a part of its review of the Pilot Program, the DOJ brought forward language on the expectation of a best practices compliance program, which I previously examined in some depth. There was language brought forward from both the Pilot Program and the 2017 Evaluation of Corporate Compliance Programs (Evaluation). Each of these additions builds upon the 10 Hallmarks of an Effective Compliance Program incorporated through reference into the new Enforcement Policy.
These new additions to a best practices compliance program elevate both the corporate compliance function and the position of the Chief Compliance Officer (CCO) in an organization. Perhaps most importantly, the DOJ made clear there must be compliance expertise on the Board, which signals that companies should now have a compliance program subject matter expert (SME) on their Board of Directors. Hopefully companies like Wells Fargo and Uber will take notice of this new DOJ expectation. Compliance department budgets will also need to be commensurately increased. There is also now the requirement for not only a root cause analysis but the looping the information obtained during the root cause analysis back into the remediation phase of any corporate compliance program. While myself and others have argued these were DOJ requirements based on the Pilot Program and Evaluation, it is now a part of the US Attorney’s Manual, they will be given the full credence they deserve.
James Koukios, in Episode 360 of the FCPA Compliance Report, characterized these changes as “clarification and consolidation”; another way to consider these changes are of preservation and enhancement. The DOJ preserved the foundational compliance elements found in the 10 Hallmarks of an Effective Compliance Program and enhanced compliance programs through the incorporation of those items from the Pilot Program and Evaluation. Whichever formulation you might prefer, clearly the compliance discipline was moved forward by the DOJ with the new Policy.
All of these new statements, consolidations of prior DOJ publicly released documents and items from other sources are now consolidated in one Policy. Certainly, this is a positive move forward for all parties involved in the process; prosecutors, companies and their counsel. Looking back at the DOJ statements from this year, it is clear how important the compliance function and compliance profession is in FCPA enforcement. In April Attorney General Sessions said, at the Ethics & Compliance Initiative (ECI) Annual Conference, the following about compliance practitioners, “your work seeks to prevent, by building strong cultures of compliance within your companies to deter illegal and unethical conduct. We applaud those efforts. Our department would much rather have people and companies obey the law and do the right thing, so we don’t have to see them in court. Your good work makes our jobs easier, and it makes your companies and our country better. So far, so good. The E&C community is recognized for doing their job of helping companies follow their moral compass.”
Finally, the DOJ has brought everyone into the fight against bribery and corruption. Someone as thoughtful as former Deputy US Attorney General George J. Terwilliger III, writing in the FCPA Blog, said, “The new policy is grounded in the notion that companies and the government have a shared interest in securing the rule of law, which in this context includes global commercial markets freed from the influence and corrosive effects of corruption.” When you can couple such a policy under the rule of law, it is quite an achievement. It is the final concept which makes this new Policy truly unique. Hats off to the DOJ for it.
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© Thomas R. Fox, 2017