'Declinations with Disgorgement' in FCPA Enforcement
44 Pages Posted: 19 Jul 2017 Last revised: 18 Aug 2019
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
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