On November 29, 2017, Deputy Attorney General Rod Rosenstein announced significant revisions to the Foreign Corrupt Practices Act (“FCPA”) Pilot Program (“Pilot”) adopted by the Department of Justice (“DOJ”) last year, which encourages corporations to voluntarily disclose potential wrongdoing under the FCPA as explained in more detail here. Changes to the Pilot provide additional concessions to companies that choose to voluntarily disclose individual wrongdoing under the FCPA.
Specifically, if a company voluntarily self-discloses potential wrongdoing, fully cooperates with the DOJ, and remediates the wrongdoing in a timely and appropriate manner, there will be a presumption that the DOJ will decline to prosecute any potential misconduct. However, Rosenstein explained that the presumption can be overcome if there are aggravating circumstances related to the nature and seriousness of the offense, or if the offender is a criminal recidivist. And even where there are aggravating circumstances that compel an enforcement action, so long as the company satisfies the voluntary self-disclosure and remediation requirements of the Pilot as more fully described here, DOJ will recommend a 50% reduction off the low end of the Sentencing Guidelines fine range. Importantly, however, Rosenstein clarified that criminal recidivists would be ineligible for such a credit. In making these changes to the Pilot, Rosenstein underscored that the DOJ was not offering immunity to corporations. Rather, the changes to the Pilot are intended to establish more alluring incentives for companies to help the DOJ combat and deter individual misconduct under the FCPA.
Overall, the recent changes to the Pilot reflect DOJ’s renewed commitment to encourage collaboration by companies in the enforcement of the FCPA. Treating companies as an “ally” in this pursuit, the DOJ hopes that offering additional concessions to companies that choose to voluntarily disclose potential wrongdoing will create a more effective and robust deterrent to individuals engaging in FCPA misconduct. DOJ expects to provide additional, formal guidance on this program and its compliance priorities in the near future. We will provide updates as this material becomes available.