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Financial Services Law Insights and Observations

DOJ again clarifies FCPA enforcement policy

Agency Rule-Making & Guidance DOJ FCPA Corporate Enforcement Policy Bribery Enforcement

Agency Rule-Making & Guidance

On November 21, the DOJ updated its FCPA Corporate Enforcement Policy to clarify ways in which companies can voluntarily disclose information in an effort to receive leniency from the Department in foreign bribery situations. First, a company does not need to have a complete picture of a possible violation when it first shares information with the DOJ; rather, the company should “make clear that it is making its disclosure based upon a preliminary investigation.” Next, the agency expects a company to disclose “where the company is aware of relevant evidence not in the company’s possession,” simplifying the requirement which previously called for disclosure of “opportunities for the department to obtain relevant evidence not in the company’s possession.” Finally, in the course of a merger or acquisition “an acquiring company that discloses misconduct may be eligible for a declination, even if aggravating circumstances existed as to the acquired entity.”

As previously covered by InfoBytes, the policy was last amended in March (March 2019 version available here) to, among other things, clarify the Department’s position on the use of ephemeral messaging apps by companies seeking full cooperation credit under the policy.

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