Federal criminal defense lawyer Michael Leonard discusses the revised DOJ “Corporate Enforcment Policy” which was recently released by the United States Department of Justice’s Criminal Division. This Policy was previously called the “FCPA Corporate Enforcement Policy.” This revised Policy seeks to provide even greater incentives for companies to come up with and implement their own internal compliance programs, and more importantly for them to actively and adequately investigate, act on, and punish those who engage in potentially illegal conduct.
The revised Policy makes clear that companies who self-disclose potentially illegal conduct may be eligible for “declinations.” In other words, no federal criminal prosecution at all. The Policy indicates this may be the case even where otherwise “aggravating circumstances” exist.
The revised Policy further indicates that companies who do not voluntarily disclose potentially illegal conduct, but who still engage in extraordinary cooperation and remediation efforts can still be eligible for a reduction in the fine that would be otherwise assessed against them – of up to fifty percent (50%) off the low end of the federal Sentencing Guidelines. Not surprisingly, however, the revised Policy indicates that the most significant such reductions will ordinarily be given to those companies who provide “extraordinary” levels of cooperation with federal prosecutors as well substantial internal remediation efforts.
Moreover, for companies who meet a gold standard level by voluntarily self-reporting potentially illegal conduct; fully cooperating with government investigations; and implementing prompt and effective remediation against wrongdoers and systemic issues, the DOJ may recommend a reduction in the fine a company might otherwise face under the applicable Guidelines of up to 50% to 75% off the low end of the Guidelines range. The revised Policy does point out that recidivist companies will not generally be eligible for such substantial reductions in fines.
In sum, this revised DOJ Policy underscores the importance, from a corporate standpoint, of getting out ahead of potentially criminal conduct, including by way of having in place strong internal controls, reporting mechanisms, and investigation teams. In addition, self-reporting and internal action against wrongdoers may go a long way towards avoid federal criminal prosecution entirely, or at least reducing the company’s monetary exposure.
Written by Michael Leonard
Leonard Trial Lawyers
March 13, 2023