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The V&E Report
Insights in Government Enforcement and Investigations

  • 23
  • July
  • 2019


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DOJ Signals FCPA Policy Shift Focusing on M&A Transactions, Creating New Incentives and Heightened Risks for Companies on Both Sides of Deals

A recent expansion by the Department of Justice (“DOJ” or the “Department”) to its FCPA Corporate Enforcement Policy (“CEP”) has gone largely unnoticed, but the shift in policy now provides new incentives for companies to self-report misconduct that is discovered after a merger or acquisition, while also raising the specter of increased exposure for companies and executives who sell assets tainted by corruption. 

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Footnote Fodder: DOJ’s Modified FCPA Guidance Includes Footnote That Appears to be Responding to Criticism

Last week, the DOJ updated its guidance to the Foreign Corrupt Practices Act (“FCPA”) and in doing so tweaked its de-confliction advice. “De-confliction” is the practice of asking corporate counsel to delay interviewing an employee in an internal investigation to allow the DOJ to speak with the employee first.

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DOJ Updates FCPA Cooperation Credit Policy for M&A

Last week, the Department of Justice (“DOJ” or “Department”) made a series of changes to the 2017 FCPA Corporate Enforcement Policy (“Policy”) contained in the Justice Manual (until last year, known as the United States Attorneys’ Manual). These changes, which were first announced by Assistant Attorney General Brian Benczkowski on March 8, 2019 during the ABA White Collar Crime Conference, include rescinding the requirement that companies prohibit the use of disappearing messages applications, clarifying the Department’s “de-confliction” policy, and updating language to soften companies’ requirement to disclose facts about involved individuals consistent with a policy change announced in November 2018.

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Burn After Reading? — DOJ Loosens Previous Ban on Secretive Messaging Apps

DOJ has again modified its guidance regarding enforcement of the FCPA. Among the recent modifications is a loosening of the ban it had announced in 2017 on the use of disappearing messaging applications or software by companies hoping to receive cooperation credit under the Corporate Enforcement Policy. In 2017, DOJ had announced a policy that required companies wishing to receive full cooperation credit to “prohibit[] employees from using software that generates but does not appropriately retain business records or communications,” as part of prohibiting the destruction or deletion of business records.

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Recent FCPA Speeches Highlight and Defend DOJ Priorities

On March 7 and 8, 2019, Deputy Attorney General Rod Rosenstein and Assistant Attorney General Brian Benczkowski delivered separate speeches on developments in FCPA enforcement, highlighting that DOJ aims to make “corporate criminal enforcement more effective and efficient.”1 These statements effectively double-down on DOJ’s FCPA Corporate Enforcement Policy of trying to get companies to self report and cooperate by dangling the carrot of declinations, even in cases of serious wrongdoing.

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DOJ Announces Revised Policy Reflecting Move Away from Yates Memo

On November 28, 2018, speaking at the American Conference Institute’s 35th International Conference on the Foreign Corrupt Practices Act (“FCPA”), Deputy U.S. Attorney General Rod Rosenstein announced changes to the Department of Justice’s (“DOJ” or “Department”) policy on individual accountability in corporate cases.1

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