The DOJ has announced a one-year pilot program in its Fraud Section’s FCPA Unit. The program provides guidance to DOJ prosecutors for corporate resolutions in FCPA cases, and is designed to motivate companies to voluntarily self-disclose FCPA-related misconduct, fully cooperate with the Fraud Section, and, where appropriate, remediate flaws in their controls and compliance programs.
The pilot program describes what the DOJ means by “voluntary self-disclosure,” “full cooperation,” and “remediation.” It also explains the credit available to companies that in fact voluntarily self-disclose FCPA misconduct, fully cooperate with investigations, and remediate. The pilot program builds on the Yates Memorandum issued in September 2015.
The guidance provides that if a company chooses not to voluntarily disclose its FCPA misconduct, it may receive limited credit if it later fully cooperates and timely and appropriately remediates – but any such credit will be markedly less than that afforded to companies that do self-disclose wrongdoing. By contrast, when a company not only cooperates and remediates, but also voluntarily self-discloses misconduct, it is eligible for the full range of potential mitigation credit. That means that if a criminal resolution is warranted, the Fraud Section may grant a reduction of up to 50 percent below the low end of the applicable U.S. Sentencing Guidelines fine range, and generally will not require appointment of a monitor. In addition, where those same conditions are met, the Fraud Section’s FCPA Unit will consider a declination of prosecution.