DOJ Makes Major Move to Expand Leniency for Companies That Disclose Foreign Bribery


November 29, 2017

The department laid out a bold new policy providing “presumption” of non-prosecution for companies that self-report FCPA violations and meet other conditions.

Deputy Attorney General Rod J. Rosenstein announced on Wednesday the rollout of a US Department of Justice (DOJ) policy that offers companies the ultimate incentive to self-report corruption and bribery and cooperate with government agency investigations: full protection from prosecution. The policy makes permanent and expands upon the Obama administration’s Foreign Corrupt Practices Act (FCPA) Pilot Program, which began in April 2016 and offered reduced penalties for self-reporting.

The new program, called the FCPA Corporate Enforcement Policy, has been incorporated into the US Attorney’s Manual and takes effect immediately. The policy goes further than the Obama-era FCPA Pilot Program with a “presumption” that companies will not be prosecuted if they meet certain conditions. Under the pilot program, the DOJ was only required to “consider” declining to prosecute companies that met those conditions.

Rosenstein stated as justification for the policy that it “makes sense to treat corporations differently than individuals,” and that the DOJ should focus on prosecuting and holding accountable culpable individuals rather than simply imposing large fines on companies that ultimately penalize shareholders.

Rosenstein said that in order to fully avoid penalties, companies must voluntarily self-report the issue, cooperate fully with prosecutors, and identify and remediate the root causes and gaps in compliance controls that led to the problem. Companies must also help government investigators identify the individuals responsible for the misconduct, he said. According to the revised language in the US Attorney’s Manual, companies must still pay all disgorgement, forfeiture, and restitution resulting from the misconduct at issue in order to qualify for treatment under the FCPA Corporate Enforcement Policy. The manual also notes that this restitution requirement may be satisfied by a parallel resolution with a relevant regulator, such as the US Securities and Exchange Commission.

The presumption of declination may be overcome only if there are aggravating circumstances related to the nature of the offense, or if the company is a repeat offender. The US Attorney’s Manual lays out several examples of aggravating circumstances, including involvement by executive management in the misconduct, “significant profit” to the company from the misconduct, and pervasiveness of the misconduct within the company.

Even if aggravating circumstances compel an enforcement action, companies that satisfy the conditions will be eligible under the policy for a 50% reduction off the low end of the fine range in the Federal Sentencing Guidelines. Repeat offenders, however, may not be eligible for such credit.

Rosenstein said the new policy also provides details on how the DOJ will evaluate an appropriate compliance program, which will vary depending on the size and resources of a company. While language providing general guidance on implementation of an effective compliance and ethics program has been added to the FCPA section of the US Attorney’s Manual, this guidance is under a sub-section titled “Timely and Appropriate Remediation in FCPA Matters.” Thus, it is unclear at this point whether the DOJ, under the new policy, will consider a company’s preexisting compliance program (and gaps or deficiencies therein) or whether implementation of an effective program after the fact will be deemed sufficient.

Rosenstein emphasized that the new policy does not provide a guarantee for companies, and that the DOJ is unable to “eliminate all uncertainty” in prosecutorial discretion, but said that he believes the policy strikes a balance “in favor of greater clarity about our decision-making process.” 


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:


New York
Kelly A. Moore
Martha B. Stolley

Eric Kraeutler
Zane D. Memeger
John J. Pease, III
Eric W. Sitarchuk

Alison Tanchyk 

Century City
Nathan J. Hochman


美国司法部(US Department of Justice, DOJ)制定了一项“大胆”的新政策。该政策“假定”对自我披露违反“反海外腐败法(Foreign Corrupt Practices Act, FCPA)”且满足其他条件的公司免于被诉。

美国司法部副部长罗森斯坦(Rod J. Rosenstein)于周三宣布推出了一项新政策。该政策为企业提供自我披露其腐败和贿赂的情况,并与政府机构调查合作提供了终极的激励机制,即免受起诉的全面保护。该政策将奥巴马政府于2016年4月开始实施的FCPA“试点计划(Pilot Program)”延长并使之得以常态化。在“试点计划”中,自我披露将可以获得减低处罚的待遇。

这项名为“FCPA企业执法政策(FCPA Corporate Enforcement Policy)”(“政策”)的新计划,已被纳入《美国检察官指南(US Attorney’s Manual)》(“指南”),并立即生效。该政策比奥巴马时代的FCPA“试点计划”更进一步,即“假定”公司只要符合某些条件就免于被诉。而在试点计划下,美国司法部只是被要求“考虑”拒绝起诉符合这些条件的公司。



即使加重情节迫使执法行动被启动,在该“政策”下,满足条件的公司也能够适用“联邦量刑指南(Federal Sentencing Guidelines)”中最低减免50%罚款金额的条款。然而,屡次违规者可能没有资格获得该减免。