Last April, the DOJ’s Criminal Division launched the one-year Pilot Program. The remaining four months of the Pilot Program promise to provide valuable information on several fronts.
Building on the Yates Memo, the Pilot Program provides structured incentives for companies to self-disclose, cooperate, and remediate FCPA violations.
So far, the DOJ has issued five declination letters under the Pilot Program.
Three were in June 2016, and two in September 2016. All five involved conduct in China.
In all five, the DOJ pointed to six common factors for its reasons to decline prosecution:
1) timely self-disclosure
2) thorough investigation
3) fulsome cooperation (including identifying responsible individuals)
4) a promise to cooperate in the future regarding individual investigations
5) remediation (including termination of employees in all five declinations), and
6) full disgorgement.
All but one also pointed to the establishment of an enhanced compliance program.
And only one mentioned a civil penalty in addition to a disgorgement.
One declination also cited as a factor that the company’s internal audit program had discovered the reported conduct.… Continue Reading