The former number two prosecutor in the DOJ’s FCPA unit said companies that can meet a simple five-part good-faith compliance test shouldn’t face FCPA charges.
Writing in Bloomberg’s Criminal Law Reporter on Friday, Billy Jacobson said there’s no need to amend the FCPA, as proposed by the U.S. Chamber of Commerce and others.
‘Instead,’ Jacobson said, ‘the Department of Justice could, and should, exercise its prosecutorial discretion and commit to not bringing FCPA-related criminal charges against companies that have done all they could to curb corruption within their midst and to cooperate with the government when corruption is discovered.’
At the DOJ, Jacobson served for five years as assistant chief for FCPA enforcement. In 2009, he became co-general counsel and chief compliance officer at Weatherford International Ltd.
Any company that can meet all five elements of his test shouldn’t be charged, Jacobson said, even by deferred or nonprosecution agreements.
The elements are:
(1) Voluntary disclosure of the violation.
(2) No participation in the illegal conduct by senior management.
(3) Full cooperation with the government, ‘including providing evidence and information against employees, officers, directors, and agents of the company.’
(4) Remedial measures to prevent future violations, including disciplining culpable employees, implementing better internal controls, and improving anti-corruption training.
(5) Having in place a strong compliance program before the illegal behavior happened.
This approach, Jacobson said, would encourage compliance by rewarding good practices. It would also produce more enforcement against companies because of their voluntary disclosures, and more efficient prosecution individuals.
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