Keynotes
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The new DOJ policy seeks to increase coordination on FCPA and related anti-corruption investigations and enforcement actions between DOJ and foreign government agencies.
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The policy’s intended goal is to reduce duplicative enforcement proceedings and unwarranted penalties for the same conduct.
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Nonetheless, DOJ will act without hesitation if it believes that parallel enforcement actions are necessary to adequately further its FCPA enforcement agenda.
Under a new policy announced Wednesday by Deputy Attorney General Rod Rosenstein, multinational companies can finally look forward to eliminate multiple penalties for similar Foreign Corrupt Practices Act (FCPA) violations and related anti-corruption conduct across different jurisdictions. Announced in separate remarks delivered to the New York City Bar White Collar Crime Institute and an American Conference Institute conference on the FCPA, the new DOJ policy seeks to avoid imposing multiple penalties on a company for the same conduct, especially in highly regulated global industries where companies may be accountable to multiple regulatory bodies around the world.
New FCPA Enforcement Policy
Pursuant to the new policy, DOJ prosecutors are expected to coordinate with foreign law enforcement authorities in connection with FCPA and related anti-corruption investigations and enforcement actions. Importantly, the new DOJ policy encourages cooperation with non-U.S. enforcement agencies to achieve an “overall equitable result” in cases involving the same misconduct. Under the new policy, such cooperation would include, among other things, crediting and apportionment of financial fines, forfeitures, and penalties and “other means of avoiding disproportionate punishment.” However, while the new policy is intended to spare companies from accumulating multiple penalties from various U.S. and foreign government agencies, “[c]ooperating with a different agency or a foreign government is not a substitute for cooperating with the Department of Justice.”
Additionally, while emphasizing the goal of reducing duplicative penalties for the same conduct, Mr. Rosenstein reiterated that the Department would not hesitate to pursue multiple penalties if a particular case warranted such measures. Accordingly, the new DOJ policy will direct prosecutors to consider several factors when determining whether multiple penalties are appropriate in an FCPA enforcement action. In particular, to make these determinations, DOJ prosecutors are expected to focus on the egregiousness of the wrongdoing, statutory mandates regarding penalties, the risk of delay in finalizing a resolution and the adequacy and timeliness of a company’s disclosures and cooperation with the Department. Additionally, prosecutors will be expected to consider internal recommendations about white collar crime, corporate compliance and related issues made by the Department’s Working Group on Corporate Enforcement and Accountability, an advisory body created to promote consistent enforcement practices.
Considerations
Multinational companies have reason to be optimistic about DOJ’s newly announced policy on international FCPA enforcement coordination. However, they should continue to be cautious in their anti-corruption compliance efforts. Indeed, even when other foreign agencies bring their own enforcement actions, “the Department will act without hesitation to fully vindicate the interests of the United States” if it believes that parallel enforcement actions are necessary to adequately further DOJ’s goal of general and specific deterrence consistent with its FCPA enforcement agenda. Additionally, while the Department is now expected to increase its cooperation efforts with foreign counterparts to possibly avoid duplicative enforcement actions, practical concerns such as “timing of other agency actions, limits on information sharing across borders, and diplomatic relations between countries” may constrain the Department’s international coordination efforts.
