On April 5, 2016, Assistant Attorney General Leslie Caldwell, who heads the Criminal Division of the Department of Justice (DOJ), announced a new “FCPA pilot program” designed to motivate companies to voluntarily selfdisclose FCPA-related misconduct. In making the announcement, AAG Caldwell disclosed a newly released policy document authored by Fraud Section Chief Andrew Weissmann entitled “The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance” (the “Guidance”).1 According to the Guidance, during a one-year pilot period effective April 5, 2016, companies that voluntarily disclose improper conduct to the Fraud Section’s FCPA Unit, fully cooperate in accordance with the Principles of Federal Prosecution of Business Organizations and the Yates Memo, appropriately remediate, and otherwise pass muster under the “stringent requirements” of the pilot program may receive up to a 50% reduction off the bottom of the U.S. Sentencing Guidelines fine range and generally will not be required to retain an independent compliance monitor. Companies that do not voluntarily disclose improper conduct, but that do “fully cooperate and timely and appropriately remediate,” will be accorded “at most a 25% reduction off the bottom of the Sentencing Guidelines fine range.”
OUR TAKE -
The Department deserves credit for engaging in an effort to provide more clarity in the self-disclosure process and greater certainty in the results. But there is a natural tension between the Department’s understandable desire to maintain its discretion to resolve each case based on its own facts and circumstances, and the business community’s equally reasonable desire for certainty and finality. In the end, DOJ’s need to build flexibility into the pilot program limits its ability to provide the greater certainty that the business community wants, as the Guidance’s promises to provide benefits are qualified with words like “may,” “generally,” and “will consider.”
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