At the September 21, 2023 Conference of the Global Investigations Review, Principal Associate Deputy Attorney General Marshall Miller announced actions by the Department of Justice (“DOJ”) to further incentivize companies engaged in M&A to prioritize compliance. Miller affirmed that “acquiring companies should be rewarded—rather than penalized—when they engage in careful pre-acquisition diligence and post-acquisition integration to detect and remediate misconduct at the acquired company’s business.” He noted that in practice, “… [Main Justice’s] Criminal Division has declined to take enforcement action against companies that have promptly and voluntarily self-disclosed misconduct uncovered in the mergers and acquisitions context and then remediated and cooperated with the Justice Department in prosecuting culpable individuals,” and that the DOJ “will be looking to apply that same approach Department-wide.” Continue Reading DOJ Announces Additional Guidance on Voluntary Self-Disclosure in M&A Context
Andrés Felipe Sáenz’s practice focuses on white-collar defense, regulatory enforcement, and complex civil litigation, particularly with respect to cross-border issues.
On March 3, 2023, Assistant Attorney General (“AAG”) Kenneth A. Polite announced revisions to two Department of Justice (the “DOJ”) Criminal Division policies and the launch of a new pilot program, as well as a forthcoming re-issuance of the FCPA Resource Guide in Spanish later this month. His announcement follows a speech by Deputy Attorney General (“DAG”) Lisa O. Monaco the day before previewing the policy changes. In parallel, the DOJ published (1) a new Compensation Incentives and Clawback Pilot Program (the “Pilot Program”), (2) revised Evaluation of Corporate Compliance Programs (“ECCP”) guidance, and (3) a revised Memorandum on the Selection of Monitors in Criminal Division Matters (the “Corporate Monitor Memorandum”).Continue Reading Department of Justice Announces Revisions to Criminal Division Policies
On February 22, 2023, the Department of Justice announced a new corporate Voluntary Self-Disclosure Policy for U.S. Attorney’s Offices nationwide (the “USAO Policy”).Continue Reading U.S. Attorney’s Offices Issue Nationwide Corporate Voluntary Self-Disclosure Policy
The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.
The Securities and Exchange Commission (SEC) and Department of Justice (DOJ) ramped up their enforcement efforts in 2022, often in highly coordinated actions, including with other regulatory agencies such as the Commodity…
Following a speech by Assistant Attorney General Kenneth A. Polite on January 17, 2023, the DOJ issued additional guidance on changes to the Corporate Criminal Enforcement Policy, focused on voluntary self-reporting.
The policy increases, and makes more explicit and concrete, the potential benefits for companies to self-disclose misconduct, cooperate, and remediate, as well as the…
On December 1, 2022, at the American Conference Institute’s 39th International Conference on the Foreign Corrupt Practices Act (“FCPA”) in Washington D.C., Acting Principal Deputy Assistant Attorney General Nicole M. Argentieri (“DAAG Argentieri”) gave a special keynote speech highlighting developments in FCPA enforcement by the Department of Justice (“DOJ” or the “Department”), including with regard to the application of the DOJ’s announcement of corporate criminal enforcement policy priorities in September of this year. DAAG Argentieri focused on several policy changes and enforcement trends and initiatives using examples from this year’s FCPA resolutions and declination, as well as from the Money Laundering and Asset Recovery Section’s Kleptocracy Asset Recovery Initiative.
Continue Reading DOJ Provides Updates on FCPA and Corporate Criminal Enforcement Trends at International Conference on the FCPA
On August 12, 2022, in United States v. Hoskins, No. 20-842 —F.4th—, 2022 WL 330357 (2d. Cir. Aug. 12, 2022) (“Hoskins II”), a three-judge panel from the Second Circuit upheld a lower court decision to overturn the foreign bribery conviction of a former Alstom SA executive, Lawrence Hoskins. The Court concluded that the trial evidence did not support a finding that Defendant Hoskins was an “agent” of a U.S. subsidiary of the French multinational railway manufacturer Alstom (“Alstom U.S.”). While highly fact-intensive and likely subject to narrow interpretation in the future, the decision is the Second Circuit’s most recent limitation on the extraterritorial reach of the Foreign Corrupt Practices Act (“FCPA”). This follows a prior Second Circuit decision in this same case limiting the scope of the FCPA’s extraterritorial reach of conspiracy liability for certain foreign individuals acting abroad.
Continue Reading Second Circuit Upholds District Court’s Rejection of DOJ Attempt to Expand Extraterritorial Reach of FCPA Through Agency Liability
On July 12, 2022, the Brazilian Government published Federal Decree No. 11,129/2022, which amends the regulation of the Brazilian Clean Companies Act (“BCCA”), Brazil’s 2013 Anticorruption Law. The new regulation came into effect earlier this week, on July 18, 2022, and replaces Decree No. 8,420/2015, which previously regulated the application of the BCCA.
Overall, the new decree resembles past regulation in form and substance, however, it provides additional guidance on the expectations of the Controladoria Geral da União (“CGU”), which oversees compliance with the BCCA, in assessing integrity programs and the range and application of administrative fines for violations of the law. The new decree also clarifies and details procedural mechanisms for the conduct of investigations and negotiation of leniency agreements by the CGU and Brazilian public prosecutors (Advocacia Geral da União – “AGU”).Continue Reading New Anticorruption Decree Modifies Regulation of Brazilian Clean Companies Act
On October 28, 2021, Deputy Attorney General Lisa O. Monaco announced the administration’s first significant changes to the DOJ’s policies on corporate criminal enforcement, highlighting departures from Trump-era policies. The announcement focused on three corporate enforcement policy developments:
- Individuals and Corporate Misconduct: to be eligible for cooperation credit, companies must provide the DOJ with all
The Colombian Corporations Commission (La Superintendencia de Sociedades) (“Superintendencia”) has issued Resolution 100-006261, which requires the overwhelming majority of companies that are supervised by the Superintendencia and engage in international transactions to adopt and implement a compliance program – called a Business Transparency and Ethics program – by April 30, 2021. The program must be designed to prevent and detect violations of anti-bribery laws, in accordance with 2016 guidance.
Continue Reading Colombian Corporate Regulatory Authority Expands Application of Compliance and Transparency Program Guidelines