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Deputy Attorney General Yates Expands on Individual Accountability Policy
On May 10, Deputy U.S. Attorney General Sally Yates spoke at the New York City Bar Association's White Collar Crime Conference and expanded on the DOJ's Individual Accountability Policy, which informally bears Yates' name (the Yates Memo). The DOJ issued the Yates Memo in September 2015, and Yates' remarks were focused on why DOJ issued the policy and how it has been working in practice. Yates made clear that "holding individuals accountable for corporate wrongdoing has always been a priority for" DOJ, but that the policy memorandum was necessary to overcome "real world challenges" that DOJ encounters (e.g., convoluted corporate structures and lines of authority, data privacy laws, and inability to compel foreign witness testimony) so that it can hold individuals responsible for corporate wrongdoing. In practice, Yates said that the policy has not caused the parade of horrors that defense attorneys and client alerts have predicted. For example, she stated that she was not aware of any company refusing to cooperate with DOJ as a result of the policy. She further added that "no one has told us that they will be forced to waive privilege in order to comply with the policy." Instead, she said that the policy already has caused a shift toward higher compliance standards within companies. Yates also highlighted how DOJ attorneys are focused on individuals from the outset of an investigation: "The first thing the lawyers briefing me discuss is what we are doing to identify the individuals involved and what the company is doing during the course of its cooperation to meet its obligation to provide all the facts about individual conduct." In addition civil enforcement efforts have broadened to focusing on individuals. According to Yates, "[a]bility to pay is one of the factors considered, but it's no longer the determinative factor in deciding whether to bring an action in the first instance."
DOJ Announces New Pilot Program to Encourage FCPA Cooperation and Self-Reporting
On April 5, 2016, the DOJ announced a one-year pilot program designed to encourage corporations to voluntarily self-report FCPA-related misconduct and cooperate with the DOJ. The program emerges from the DOJ’s heightened focus on individual accountability as highlighted in the Yates Memo. For corporations that (i) voluntarily disclose the misconduct and all relevant facts related to the misconduct “within a reasonably prompt time after becoming aware of the offense,” (ii) fully cooperate with the DOJ investigation, and (iii) take appropriate actions towards remediation, DOJ may offer up to a 50% fine reduction from the bottom of the applicable Sentencing Guidelines fine range calculation, and will generally not require the appointment of a monitor if the corporation has already implemented an effective compliance plan. Furthermore, DOJ notes that in certain circumstances, the Department will consider declining prosecution altogether.
While the pilot program ends in one year, any corporation that voluntarily self-reports or cooperates in FCPA matters during the pilot period will be eligible for the benefits, even if the pilot period expires during the investigation. More details and specific requirements can be found in the DOJ’s Foreign Corrupt Practices Act Enforcement Plan and Guidance.