At the DOJ’s celebration of Sunshine Week yesterday, Attorney General Eric Holder, left, said the DOJ is committed to more transparency and accountability.
The AG said the Justice Department responded to more Freedom of Information Act requests in 2011, reduced the backlog of pending requests, and set the tone for the entire federal government. That’s good news.
But we can’t let Sunshine Week pass without a plug for more openness of a particular kind. We’re talking about FCPA declinations — decisions not to prosecute a company after an investigation.
Under current practice, the DOJ and SEC don’t reveal anything about declinations. Companies can disclose them and some do. But an unknown number do not.
In Bloomberg’s Corporate Counsel Law Report, James Tillen and Marc Alain Bohn from Miller & Chevalier looked at declinations.
Explaining why disclosure is so important, they said:
[Although declinations] might reflect an insufficiency of evidence, the absence of jurisdiction, or a lack of actionable misconduct, they can also represent the clearest evidence of benefit from a voluntary self-disclosure or from extraordinary cooperation. Therefore, any determination of whether to voluntarily self-disclose a potential violation or cooperate fully with enforcement authorities in an investigation is incomplete without including the recent spike in declinations in the analysis of what, strategically, is in the company’s best interest. . . .
The full article can be downloaded here.
Here’s a graph from the article (reprinted with permission) with stats through August ’11: