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Clifford Chance

Briefings

DOJ Announces New FCPA Corporate Enforcement Policy, 'Doubles Down' on Voluntary Self-Disclosure

1 December 2017

On November 29, 2017, the US Department of Justice announced a revised Foreign Corrupt Practices Act Corporate Enforcement Policy that amends the voluntary disclosure terms in DOJ's FCPA Pilot Program. The new policy includes for the first time a "presumption that the company will receive a declination" in FCPA matters where the company has timely and voluntarily self-disclosed misconduct, fully cooperated, and appropriately remediated. In the event that a declination is not appropriate due to "aggravating circumstances," such as involvement by executive management or pervasiveness of the misconduct, DOJ will recommend a 50% reduction from the low end of the fine range provided in the US Sentencing Guidelines and "generally will not" require appointment of a monitor. The new policy also details the criteria DOJ will examine in order to determine whether the company receives credit for timely and voluntary self-disclosure, full cooperation, and appropriate remediation, and lists components of an effective compliance and ethics program. The policy leaves in place the requirement that companies disgorge all profits from the relevant conduct.
 
The new policy clearly is intended to further incentivize companies to make voluntary self-disclosures and may alter the risk calculus for companies deciding whether to disclose.

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