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Lanny Breuer: Pilot Program falls short

The DOJ’s Pilot Program to encourage companies to self report bribery and cooperate with prosecutors doesn’t fix some problems with FCPA investigations and enforcement actions, Lanny Breuer said Wednesday.

The vice chair of Covington & Burling and former U.S. assistant attorney general was speaking at the FCPA Blog NYC Conference.

The DOJ rolled out the Pilot Program six months ago. Companies can qualify for the program by self reporting FCPA violations, cooperating, and disgorging profits made from bribes.

Companies that qualify can receive a 50 percent discount on fines they might face under the U.S. Sentencing Guidelines.

It’s still early days for the Pilot Program, Breuer said. But the underlying problem of prosecutorial discretion in how to run investigations and who to charge is still there, he said.

The Wall Street Journal’s Sam Rubenfeld first reported Breuer’s comments Wednesday.

“There are very desirable benefits to the program, but they’re still discretionary,” Breuer said. 

The DOJ doesn’t have to follow the Pilot Program when pursuing cases. That means companies don’t know whether they’ll qualify, according to Breuer.

“In that sense, it’s no different than it was before the Pilot Program when I spoke as [assistant attorney general] trying to get companies to disclose,” he said.

According to the WSJ’s Rubenfeld,

[Breuer’s] 40-minute discussion also dove into the topic of “de-confliction,” which Mr. Breuer said involved the government asking a company to halt its own investigation for the government to be the first to interview witnesses. Mr. Breuer said “de-confliction,” if required as cooperation to gain the benefits of the pilot program, could lead companies to be unable to disclose to other agencies or to shareholders, and it could keep a board in the dark about the alleged wrongdoing.

Breuer said asking publicly traded companies to stand down from an internal FCPA investigation is “an extraordinary request, in my view.”

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Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.

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