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The V&E Report
Insights in Government Enforcement and Investigations

Nissan Agrees to Pay $16.1 Million to Settle SEC’s Claim of Fraudulent CEO Compensation

Despite never paying any of the compensation at issue and without admitting or denying the allegations, the Nissan Motor Co., Ltd. (“Nissan”) agreed to pay the Securities and Exchange Commission (“SEC”) $15 million to settle a claim that it engaged in a $140 million fraudulent compensation scheme. On Monday, the SEC announced the settlement with Nissan, its former Chief Executive Officer Carlos Ghosn (“Ghosn”), and its former director Greg Kelly (“Kelly”). Ghosn and Kelly agreed to pay the SEC $1 million and $100 thousand, respectively.

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New Guidelines Reward Voluntary Self-Disclosure of FCA Violations and Cooperation with DOJ

The U.S. Department of Justice (“DOJ”) announced this month its latest initiative to incentivize companies to voluntarily self-disclose potential False Claims Act (“FCA”) violations and to cooperate with DOJ during FCA investigations.1 These new guidelines, which have been incorporated into the U.S. Attorney Manual (recently renamed the Justice Manual), formalize DOJ’s established practice of decreasing FCA penalties sought when a company voluntarily discloses and actively cooperates with DOJ’s investigation into its conduct.

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Investigation Outsourcing: When Do Companies Become Arms of the State?

A recent decision by a district judge in the Southern District of New York demonstrates that when a company’s outside counsel conducts an investigation in connection with a government investigation of the company, the Government’s involvement in shaping, directing and relying upon that investigation will be closely scrutinized.1 If the Government cannot demonstrate that it has not simply “outsourced” its investigative function, the company and its outside counsel may be seen as tools of the Government and arms of the State.

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Updated DOJ Guidance Provides Useful Roadmap for Implementing and Enhancing Corporate Compliance Programs

On Tuesday, the U.S. Department of Justice released perhaps the most comprehensive guidance to date on how prosecutors evaluate the design, implementation, and effectiveness of corporate compliance programs in making charging decisions, framing sentencing recommendations, and determining whether on-going corporate compliance obligations, such as the imposition of a monitor, may be necessary as part of any enforcement resolution. In announcing the release of the Criminal Division’s Evaluation of Corporate Compliance Programs guidance document (“Guidance”), DOJ Criminal Division, Assistant Attorney General Brian A. Benczkowski explained that the updated guidance is intended to align the Fraud Section’s 2017 guidance with other Department instructions and legal standards, and to provide greater transparency into prosecutors’ assessments.

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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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