The U.S. Department of Justice is stepping up enforcement of the Foreign Corrupt Practices Act, but it’s unclear if the DOJ’s newly aggressive tone will affect companies’ willingness to self-report violations and cooperate with investigations, McGuireWoods partner Ben O’Neil and associates Andrew Thornton-Dibb and Jah Akande wrote in a Dec. 7, 2022, story in Law360. The attorneys are all members of the firm’s Government Investigations & White Collar Litigation Department.
The authors analyzed recent resolutions to FCPA prosecutions in light of two policy memos released by the DOJ — one in October 2021 and one in September 2022 — outlining the DOJ’s corporate enforcement strategy. The memos highlight the heightened requirements corporations must satisfy to receive credit for cooperating with the DOJ.
In both cases, companies that violated the FCPA by paying bribes to foreign officials achieved relatively positive outcomes under the circumstances, due in part to their rapid and thorough cooperation with the DOJ’s investigations. This suggests that companies will always be able to achieve some measure of leniency by rapidly cooperating with the DOJ in the prosecution of individuals involved in criminal activity, the authors said.
But they also noted that each of those investigations dragged on for years, during which the companies had to bear significant expense and disruption.
“While most companies enter into a cooperative posture to avoid penalties and achieve the finality necessary to move forward with normal business operations out from under a cloud of allegations, the costs associated with half a decade of cooperation with the government may make that decision at least a little harder to make,” the authors wrote.