During a recent speech at the Georgetown University Law Center, Kenneth Polite, the Assistant Attorney General for the DOJ’s Criminal Division announced changes to the Criminal Division’s FCPA Corporate Enforcement Policy that are intended to increase the incentives for corporate cooperation with the DOJ. The policy, now to be called the Corporate Enforcement and Voluntary Self-Disclosure Policy, offers a presumption of a declination to companies who voluntarily self-disclose misconduct to the Criminal Division, fully cooperate and appropriately remediate, including paying all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue.
Among other things, under the revised policy:
- the policy will apply to all Criminal Division cases, not just FCPA cases;
- even when aggravating circumstances are present, a company may still benefit from voluntary self-disclosure, if it satisfies three criteria:
- the voluntary self-disclosure was made immediately upon the company becoming aware of the allegation of misconduct;
- at the time of the misconduct and the disclosure, the company had an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the company’s voluntary self-disclosure; and
- the company provided extraordinary cooperation with the DOJ’s investigation and undertook extraordinary remediation;
- where a company voluntarily self-discloses misconduct, fully cooperates, and timely and appropriately remediates, but a criminal resolution is still warranted:
- the Criminal Division will recommend at least 50%, and up to 75% off of the low end of the US Sentencing Guidelines fine range, except in the case of a criminal recidivist (a significant increase from the previous potential maximum reduction of 50% off the Guidelines range); and
- in these circumstances, the Criminal Division will generally not require a corporate guilty plea—including for criminal recidivists—absent multiple or particularly egregious aggravating circumstances; and
- where a company had not voluntarily self-disclosed but can later demonstrate full cooperation and timely and appropriate remediation, the Criminal Division will recommend up to a 50% reduction off of the low end of the Guidelines range (compared to the previous maximum reduction of 25%).
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