Page 84 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

to the U.S. Sentencing Guidelines. In addition to the Principles of Federal Prosecution of Business
being publicly filed, DOJ places all of its DPAs on Organizations and the CEP, in the case of companies.
its website. If the company successfully completes As described, in the case of individuals, the Principles
its obligations during the term of the agreement of Federal Prosecution advise prosecutors to weigh
(typically three years), DOJ will then move to all relevant considerations, including:

dismiss the filed charges. A company’s successful • federal law enforcement priorities;
completion of a DPA is not treated as a criminal • the nature and seriousness of the offense;
conviction. Other countries, such as the United • the deterrent effect of prosecution;
Kingdom and France, have also instituted DPA-like • the person’s culpability in connection with the
frameworks to resolve corporate matters whereby offense;
• the person’s history of criminal activity;
a company can avoid prosecution if it adheres to
• the person’s willingness to cooperate in the
conditions imposed upon it for a set period of time. investigation or prosecution of others; and
• the probable sentence or other consequences
Non-Prosecution Agreements if the person is convicted. 406

Under a non-prosecution agreement, or an
The Principles of Federal Prosecution provide
NPA as it is commonly known, DOJ maintains the
additional commentary about each of these
right to file charges but refrains from doing so to
factors. For instance, they explain that prosecutors
allow the company to demonstrate its good conduct
should take into account federal law enforcement
during the term of the NPA. Unlike a DPA, an NPA
priorities because federal law enforcement and
is not filed with a court but is instead maintained
judicial resources are not sufficient to permit
by the parties. In circumstances where an NPA
prosecution of every alleged offense over which
is with a company for FCPA-related offenses, it
federal jurisdiction exists. The deterrent effect of
is made available to the public through DOJ’s
prosecution should also be kept in mind because
website. The requirements of an NPA are similar
some offenses, “although seemingly not of great
to those of a DPA, and generally require a waiver
importance by themselves, if commonly committed
of the statute of limitations, ongoing cooperation,
would have a substantial cumulative impact on the
admission of the material facts, and compliance and
community.” 407
remediation commitments, in addition to payment
As discussed above, the Principles of Federal
of a monetary penalty. If the company complies with
Prosecution of Business Organizations require
the agreement throughout its term, DOJ does not
prosecutors to consider ten factors when
file criminal charges. If an individual complies with
determining whether to prosecute a corporate
the terms of his or her NPA, namely, truthful and
entity for an FCPA violation, including the nature
complete cooperation and continued law-abiding
and seriousness of the offense; the pervasiveness
conduct, DOJ will not pursue criminal charges.
of wrongdoing within the company; the company’s
history of similar conduct; the existence and
Declinations
effectiveness of the company’s pre-existing
As discussed above, DOJ’s decision to bring
compliance program; whether the company
or decline to bring an enforcement action under
voluntarily self-disclosed the misconduct; the
the FCPA is made pursuant to the Principles of
extent of the company’s cooperation with the
Federal Prosecution, in the case of individuals, and
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