Category Archives: FCPA Pilot Program

FCPA Declination Highlights the Importance of Pre-Acquisition Due Diligence and Post-Acquisition Compliance Integration

by John F. Savarese, Ralph LeveneMarshall L. Miller, and Jonathan Siegel

As we have observed, in its early days, the Trump Administration has stressed its intention to maintain continuity in white-collar enforcement, including through its recent extension of the FCPA Pilot Program. Consistent with that approach, the first FCPA action under the new administration was a Pilot Program declination, closing an investigation without enforcement action other than disgorgement. Continue reading

The Difficulty of Defining a Declination: An Update on the DOJ’s Pilot Program

by Bruce E. YannettAndrew M. Levine and Philip Rohlik

On September 29, 2016, the U.S. Department of Justice (“DOJ”) issued two letters “closing its investigations” into alleged violations of the U.S. Foreign Corrupt Practices Act by HMT LLC, a Texas based manufacturer, supplier and servicer of above ground liquid storage tanks, (the “HMT Declination”)[1] and NCH Corporation, a Texas based industrial supply and maintenance corporation (the “NCH Declination).[2]  Unlike in the three earlier “declinations” the DOJ issued since the start of its FCPA Enforcement “Pilot Program,”[3] the companies here (HMT and NCH) are not issuers, so there were no parallel Securities and Exchange Commission (“SEC”) enforcement actions.  Each declination also includes what are described as findings of the DOJ’s investigation underlying violations of the FCPA and a requirement that each company pay “disgorgement” to the U.S. Treasury.  The HMT and NCH declinations therefore raise the question of whether and to what extent the Pilot Program, in addition to offering guidance on how to receive a declination, has altered the meaning of what a declination ordinarily will be.  Specifically, under what circumstances can a company receive a declination without the DOJ publicizing its “findings” and the company paying disgorgement (i.e., a “clean” declination)? Continue reading

The Stick that Never Was: Parsing the Yates Memo and the Revised Principles of Federal Prosecution of Business Organizations

by Miriam Baer

Addressing a full house of practitioners, scholars and government officials on September 10, 2015, Deputy Attorney General Sally Quillian Yates announced the Department of Justice’s latest efforts to pursue corporate executives who had violated the law.  “Crime is crime,” Yates told her audience, and the Department was committed to “holding lawbreakers accountable regardless of whether they commit their crimes on the street corner or in the boardroom.”

To demonstrate this renewed vigor, Yates summarized her September 9, 2015 Memorandum, entitled “Individual Accountability for Corporate Wrongdoing,” which instantaneously became known as the Yates Memo.  Several of its provisions were uncontroversial and were accepted without comment.  The measure attracting most attention was the Department’s stance on corporate offenders seeking prosecutorial leniency. Continue reading

Bribery Conspiracies, Foreign and Domestic: Ocasio v. United States and Its Implications for FCPA Complicity Theories

by Shu-en Wee and Daniel Richman*

To what extent can a nonresident foreign national be prosecuted for violations of the Foreign Corrupt Practices Act (FCPA)1 when he neither is an agent of a domestic concern nor has committed acts while physically present in U.S. territory?  Does the fact that the FCPA explicitly creates criminal liability in only these two situations mean that he cannot be charged for conspiring to violate the Act, or aiding and abetting a violation?  Such was the issue presented to Judge Janet Bond Arterton in United States v. Hoskins.2  Her rejection of the government’s conspiracy and accomplice theories in that case is presently up on appeal in the Second Circuit, but an intervening Supreme Court case may well lead the Circuit to see the case a bit differently. Continue reading