The Guidance And Declinations

The Guidance And Declinations

This article was reprinted with permission from FCPA Professor.

Much of the buzz surrounding the Guidance concerns six anonymized examples of matters DOJ and SEC declined to pursue, including a discussion of the facts DOJ and SEC considered when choosing to decline the particular matters.  However, contrary to the buzz, this is not first time, nor most detailed instance, of the DOJ publicly disclosing it FCPA "declination" decisions.

In 1983 in the context of FCPA reform hearings, a House Committee wanted to better understand and access the DOJ's FCPA enforcement program.  To this end, it requested a variety of information from the DOJ, including its closed FCPA cases.  The DOJ responded with "summaries of all closed investigations of alleged FCPA violations" and its response detailed 83 investigations summarized over 18 pages.

In reading the summaries, it is interesting to note that several instances concern conduct that would very likely be the basis of an FCPA enforcement action in this current era.  It is further interesting to observe from the summaries something old-fashioned on display. That is the DOJ being mindful of the evidentiary burdens it would be put to in bringing an action (either in persuading a grand jury to indict or ultimately prevailing at trial).   For most of the FCPA's history, the DOJ had two choices when faced with conduct that might implicate the FCPA: prosecute or do not prosecute.  In this era, the DOJ has created and championed a system with a third option - non-prosecution and deferred prosecution agreements. Since introduced to the FCPA context in 2004, this third option is one of the more obvious reasons for the increase in FCPA enforcement.

More recently, the DOJ provided information concerning its FCPA "declination" decisions in follow-up answers to questions asked at the June 2011 House FCPA hearing.  (See here for the prior post).  The information DOJ provided to Congress then is substantively similar to the "declination" information included in Guidance.

Aside from not being as revolutionary as observers may think, the Guidance "declination" examples raise more questions than answers.  For instance, in three of the examples, it is not even clear based on the information provided that the FCPA was violated.  For instance, Example 1 at most indicates that a company received competitor bid information from a third party with connections to a foreign government and discovered various FCPA red flags during an internal investigation.  Example 4 at most indicates that a customs agent engaged by a company's foreign subsidiary made small bribe payments without any discussion of whether the company or its foreign subsidiary possessed the requisite knowledge under the FCPA's third-party payment provisions.  Example 5 at most indicates that a company, in connection with its acquisition of a foreign company, learned of potential improper payments without any discussion of whether the foreign company was subject to the FCPA's jurisdiction.  (For additional reading on this quality of the examples, see this recent Guidance alert authored by WilmerHale - specifically pgs. 8-9).

Moreover, in all of the declination examples in the Guidance, the factors motivating the "declination" decision - such as voluntary disclosure and cooperation, effective remedial measures, small improper payments - can often be found in many instances in which FCPA enforcement actions were brought.

The discussion of so-called "declinations" in the Guidance raises once again the pressing question of how the enforcement agencies actually define a "declination."  To my knowledge, the DOJ has never offered a definition, but perhaps in an effort to portray a fair and balanced FCPA enforcement program, the DOJ appears to be advocating an expansive definition.  However, in the criminal context the term "declination" should be reserved for instances in which the DOJ concludes that it can prove beyond a reasonable doubt all the necessary elements of a cause of action, yet decides not to pursue the action.

With this definition, many of the Guidance "declination" examples are like a police officer "declining" to issue a speeding ticket in instances in which the driver was not speeding.  This is not a "declination"-  it is what the law commands - and such reasoning applies in the FCPA context as well.

Read more articles on the FCPA by Mike Koehler at FCPA Professor.

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