Restoring Pre-Existing Compliance Through the FCPA Pilot Program
32 Pages Posted: 5 Sep 2017
Date Written: May 30, 2017
For a quarter-century, incentives to invest in corporate compliance programs have been a cornerstone of federal white-collar enforcement. But the U.S. Department of Justice’s most recent announcement of anti-bribery enforcement policy—the FCPA Pilot Program—takes a peculiar and possibly inadvertent turn. In providing newly transparent and explicit penalty reductions, and rolling out the Department’s declination policy, the program neglects to incentivize investments in pre-existing compliance. Though remedial, or post-violation, compliance receives a newly heightened importance, pre-existing compliance receives virtually no attention. This is strange, but should not be understood as an implied policy statement on the benefits of pre-existing compliance; no conceptual basis for devaluing preventative compliance programs exists. Rather, it is likely an oversight, innocent in origin but far from innocuous in application. Now is the time to address it.
This article argues that pre-existing compliance should be restored to its rightful place at the center of FCPA enforcement policy. It describes the rise of federal incentivizes to invest in pre-existing compliance, beginning with the U.S. Sentencing Guidelines and continuing through Delaware corporate law, Sarbanes-Oxley, a series of Deputy Attorney General memoranda, the U.S. Attorneys’ Manual, the FCPA Guidance, and recent FCPA enforcement actions. It then describes the FCPA Pilot Program and how pre-existing compliance somehow, inexplicably, drifted from its traditionally central role in enforcement policy. The article concludes with suggesting a number of ways to think about how the Pilot Program’s current policies can be preserved and honored, while restoring pre-existing compliance to the place that most all stakeholders to FCPA enforcement—companies, compliance professionals, FCPA lawyers, and even the enforcement authorities themselves—believe it deserves.
Keywords: FCPA, Foreign Corrupt Practices Act, corruption, bribery, Department of Justice, pilot program, declination
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