'Declinations with Disgorgement' in FCPA Enforcement

44 Pages Posted: 19 Jul 2017 Last revised: 18 Aug 2019

See all articles by Karen E. Woody

Karen E. Woody

Washington & Lee University School of Law

Date Written: March 1, 2017


This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program; specifically, "declinations with disgorgement." This Article dissects both the purpose of, and terminology used in, declinations with disgorgement, and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred or it did not; prosecutorial discretion does not allow an "in-between" option of declination while simultaneously requiring disgorgement. Calling these dispositions "declinations," and the penalties associated therewith "disgorgement," is a wild misuse of the terms, creating a crisis in the expressive function of the Foreign Corrupt Practices Act and in the legal lexicon itself.

Keywords: FCPA, Foreign Corrupt Practices Act, disgorgement, declinations, deferred prosecution

Suggested Citation

Woody, Karen E., 'Declinations with Disgorgement' in FCPA Enforcement (March 1, 2017). 51 University of Michigan Journal of Law Reform 269 (2018), Kelley School of Business Research Paper No. 17-53, Available at SSRN: https://ssrn.com/abstract=2951879

Karen E. Woody (Contact Author)

Washington & Lee University School of Law ( email )

Lexington, VA 24450
United States

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