Does the FCPA Enforcement Policy really encourage self-reporting and cooperation?

Bribery and corruption violations are often hard to detect. For this reason, the U.S. enforcement authorities typically struggle to produce the right incentives for corporations to cooperate with public enforcement efforts in anti-corruption cases. In November 2017, following the successful implementation of an eighteen-month pilot program, the Trump Administration announced its revised Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy. The new policy offers significant benefits to corporations that voluntarily self-report their involvement in corruption, cooperate with the Department of Justice’s investigation, and take remediation actions. However, under the FCPA Corporate Enforcement Policy, corporate recidivists—repeat violators of the FCPA—are not eligible for the policy’s benefits.

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DOJ geeft nieuwe richtlijnen voor compliance monitors in FCPA-zaken (Benczkowski Memorandum)

Op 12 oktober 2018 heeft Brian Benczkowski, Assistant Attorney General for the Criminal Division of the United States Department of Justice (DOJ), het Benczkowski Memorandum aangekondigd. Dit memorandum heeft betrekking op de “Selection of Monitors in Criminal Division Matters”.

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US Court limits reach of FCPA over foreign nationals

On 24 August 2018, the US Court of Appeals held in U.S.A v. Lawrence Hoskins No. 16-1010-CR (Hoskins) that a non-resident foreign national cannot be guilty of violating the US Foreign Corrupt Practices Act (FCPA) as an accomplice or a co-conspirator if that person was incapable of committing it as a principal.

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Corporate Criminal Liability, Moral Culpability, and the Yates Memo

This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo on corporate charging decisions and the Principles of Prosecution.

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Individual Accountability for Corporate Crimes after the Yates Memo: Deferred Prosecution Agreements & Criminal Justice Reform

In response to the criticism regarding lack of accountability for individual corporate wrongdoers, Deputy Attorney General Sally Quillan Yates of the Department of Justice issued a memo on September 9, 2015, outlining new guidelines for individual accountability. These guidelines have since been incorporated into the United States Attorney's Manual. Even so, the Department of Justice has entered into several deferred prosecution agreements since the issuance of the Yates Memo where no individual wrongdoers were charged, raising concerns about adherence to the new policy. Several months before the release of the Memo, Judge Richard Leon of the District Court for the District of Columbia refused to approve a deferred prosecution agreement because he found the agreement to be overly lenient for the corporate crime at issue.

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