New guidance intended to clarify when DOJ will decline to prosecute companies in FCPA cases
Key takeawaysNew Foreign Corrupt Practices Act (FCPA) guidance issued late last year by the US Department of Justice (DOJ) has:
- adopted as official DOJ policy most aspects of the FCPA Pilot Program announced in April 2016;
- established a presumption that DOJ will decline to prosecute a business for FCPA violations when the company voluntarily self-discloses misconduct, fully cooperates with DOJ, and takes timely and appropriate remedial action; and
- provided that this presumption may be overcome based on DOJ’s discretionary consideration of aggravating factors such as:
- involvement by executive management in the misconduct;
- a significant profit to the company as a result of the misconduct;
- pervasiveness of the misconduct within the company; and
- criminal recidivism by the company.
Beyond establishing this presumption and identifying reasons why a company might nonetheless face prosecution, the guidance includes several other noteworthy provisions. Significant questions remain regarding how DOJ will apply the new policy, with practical implications for internal investigations and cross-border cases.
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