Page 59 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

Justice Manual, 297 provide guidance regarding As these factors illustrate, in many
the resolution of cases involving corporate investigations it will be appropriate for a
wrongdoing. The Principles of Federal Prosecution prosecutor to consider a corporation’s pre-
of Business Organizations recognize that resolution indictment conduct, including voluntary disclosure,
of corporate criminal cases by means other than cooperation, and remediation, in determining

indictment, including non-prosecution and deferred whether to seek an indictment. In assessing
prosecution agreements, may be appropriate in a corporation’s cooperation, prosecutors are
certain circumstances. Ten factors are considered in prohibited from requesting attorney-client
conducting an investigation, determining whether privileged materials with two exceptions—when
to charge a corporation, and negotiating plea or a corporation or its employee asserts an advice-
other agreements: of-counsel defense and when the attorney-client

• the nature and seriousness of the offense, communications were in furtherance of a crime or
including the risk of harm to the public;
fraud. Otherwise, an organization’s cooperation
• the pervasiveness of wrongdoing within the
corporation, including the complicity in, or the may only be assessed on the basis of whether
condoning of, the wrongdoing by corporate it disclosed the relevant facts underlying an
management;
investigation—and not on the basis of whether
• the corporation’s history of similar
misconduct, including prior criminal, civil, and it has waived its attorney-client privilege or work
regulatory enforcement actions against it; product protection. 298
• the corporation’s willingness to cooperate with
the government’s investigation, including as DOJ FCPA Corporate Enforcement Policy
to potential wrongdoing by the corporation’s
agents; The FCPA Corporate Enforcement Policy
• the adequacy and effectiveness of the (CEP), contained in the Justice Manual, provides
corporation’s compliance program at the that, where a company voluntarily self-discloses
time of the offense, as well as at the time of a
charging or resolution decision; misconduct, fully cooperates, and timely and
• the corporation’s timely and voluntary appropriately remediates, there will be a
disclosure of wrongdoing; presumption that DOJ will decline prosecution of
• the corporation’s remedial actions, including the company absent aggravating circumstances. 299
any efforts to implement an adequate and
effective corporate compliance program CEP declinations are public and available on the
or to improve an existing one, to replace Fraud Section’s website at https://www.justice.
responsible management, to discipline or
terminate wrongdoers, or to pay restitution; gov/criminal-fraud/corporate-enforcement-
• collateral consequences, including policy/declinations. Aggravating circumstances
whether there is disproportionate harm to that may warrant a criminal resolution instead
shareholders, pension holders, employees,
and others not proven personally culpable, as of a declination include, but are not limited
well as impact on the public arising from the to: involvement by executive management of
prosecution;
the company in the misconduct; a significant
• the adequacy of remedies such as civil or
regulatory enforcement actions, including profit to the company from the misconduct;
remedies resulting from the corporation’s pervasiveness of the misconduct within the
cooperation with relevant government
agencies; and company; and criminal recidivism. 300 Even where
• the adequacy of the prosecution of individuals aggravating circumstances exist, DOJ may still
responsible for the corporation’s malfeasance.
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