New DOJ Policy Ends Self-Disclosure Dilemma

Deputy AG Rod Rosenstein announced a permanent expansion of the DOJ’s Foreign Corrupt Practices Act Pilot Program on November 30. That’s good news for companies that routinely face the question of whether or not to investigate and disclose FCPA issues that they discover through internal investigation. In the past, voluntary disclosure often led to enforcement proceedings with adverse consequences to companies and their shareholders. While corporations may escape criminal prosecution under the new policy, culpable individuals are not covered. Voluntary disclosure and remediation doesn’t guarantee that a company will not be prosecuted, but the policy presumes that prosecution will be declined. It also presumes that self-disclosure will be accompanied by a thorough internal investigation, and that evidence against culpable individuals that the investigation turns up will be shared with the DOJ. Former Deputy AG George J. Terwilliger, writing in the FCPA blog, calls that “a sea change” that will tip the balance in most cases toward engaging in remediation and voluntary disclosure.