DOJ's FCPA CEP's #1 Goal 'Individual
DOJ Revises FCPA Corporate Enforcement Policy (CEP) to Promote & Incentivize
'functioning compliance program with effective detection mechanisms best
Assistant Attorney General Kenneth A. Polite, Jr. Delivers Remarks on Revisions
to the Criminal Division’s Corporate Enforcement Policy
The Corporate Message: Come Forward, Cooperate,
and Remediate & Get 50% to 75% Reduced Sentencing
past year alone, the Division’s Fraud Section (i)
secured convictions of over
including more than 50 who were convicted at trial; (ii) entered into seven
criminal resolutions with corporations; and (iii) announced two Corporate
Enforcement Policy declinations. And the Money Laundering and
Asset Recovery Section
convicted more than two dozen individuals and obtained two corporate guilty
pleas, including a
guilty plea from a financial institution that agreed to forfeit $2 billion in
connection with one of the largest international financial scandals in history.
And there will be more in
While we continue to utilize our investigative resources and partners to uncover
wrongdoing, we could never completely identify and address this area of
criminality without corporations – our corporate citizens – coming forward and
reporting the conduct of these wrongdoers.
That is what motivated the Criminal Division back in April 2016, when we first
incentive program—the FCPA Pilot Program.
To be as transparent as possible, at that time we laid out a roadmap for what
companies could expect if they chose to
fully cooperate with our investigation, and timely remediate.
In November 2017, we expanded the pilot program to become the
Corporate Enforcement Policy (CEP),
which we subsequently incorporated into the Department’s Justice Manual. Since
at least 2018, we have applied this policy to all corporate cases prosecuted by
the Criminal Division.
Our existing policy provides that,
if a company voluntarily
cooperates, and timely and appropriately remediates,
there is a presumption that we
will decline to prosecute
absent certain aggravating circumstances involving the seriousness of the
offense or the nature of the offender. These
include, but are not limited to, involvement by executive management
of the company in the misconduct;
a significant profit
to the company from the wrongdoing; egregiousness or pervasiveness of the
misconduct within the company; or criminal recidivism.
existing policy also offers the potential benefit of a presumption of
a declination to companies
that uncover – during the M&A due diligence process – misconduct by subsidiaries
or other entities that they are seeking to acquire, and then self-report that
misconduct to the Criminal Division.
And if a company self-discloses, but a criminal resolution is warranted, our
existing policy offers 50% off
of the low end of the applicable Sentencing Guidelines penalty range
This policy has demonstrated the Department’s commitment to rewarding companies
that do the right thing when learning about possible misconduct.
When a company has uncovered criminal misconduct in its operations, the
clearest path to avoiding a
guilty plea or an indictment is voluntary self-disclosure.
It is also the clearest path to the greatest incentives that we offer, such as a
declination with disgorgement of profits.
functioning compliance program with effective detection mechanisms
best positions companies to not only identify misconduct in the first instance,
but to make the important decision of whether to disclose it.
But in providing transparency to the potential incentives, we are underscoring
that a corporation that falls short of our expectations does so at its own risk.
Make no mistake - failing to self-report, failing to fully cooperate, failing to
remediate, can lead to dire consequences.
As you’ll hear, these changes offer companies new, significant, and concrete
incentives to self-disclose misconduct. And even in situations where companies
do not self-disclose, the revisions to the policy provide incentives for
companies to go far above and beyond the bare minimum when they cooperate with
The first significant changes to the Criminal Division’s CEP since 2017.
The revisions make clear that there will be very different outcomes for
companies that do not self-disclose, meaningfully cooperate with our
investigations, or remediate.
The revised CEP presents another path for companies facing such a choice. A path
that incentivizes even more robust compliance on the front-end, to prevent
misconduct, and requires even more robust cooperation and remediation on the
back-end, if a crime occurs. Namely, even if aggravating circumstances are
present, although a company will not qualify for a presumption of a declination,
under the revised CEP I am announcing today, prosecutors may nonetheless
determine that a declination is the appropriate outcome, if the company can
demonstrate that it has met each of the following three factors:
self-disclosure was made immediately
upon the company becoming aware of the allegation of misconduct;
At the time of the misconduct
and the disclosure,
the company had an
effective compliance program and system of internal accounting controls
that enabled the identification of the misconduct and led to the company’s
voluntary self-disclosure; and
company provided extraordinary
cooperation with the
Department’s investigation and undertook extraordinary
If a company voluntarily self-discloses misconduct, fully cooperates, and timely
and appropriately remediates, but a criminal resolution is still warranted, the
will now accord, or recommend
to a sentencing court, at least 50%, and up to 75% off of the low end of the
U.S. Sentencing Guidelines fine range,
except in the case of a criminal recidivist. In that case, the reduction will
generally not be from the low-end of the fine range, and in all cases,
prosecutors will have discretion to determine the starting point within the
Guidelines range. This revision represents a significant increase from the
previous potential maximum reduction of 50% off the Guidelines range; and
in these circumstances, we
will generally not require a corporate guilty plea—including for criminal
recidivists—absent multiple or particularly egregious aggravating circumstances.
While relevant and important, criminal recidivism alone will not always mean a
This policy applies to all Criminal Division corporate resolutions, not only
voluntary self-disclosure cases. There will be many instances in which a company
will not have voluntarily self-disclosed conduct to the Criminal Division. In
such circumstances, the revised CEP provides Criminal Division prosecutors with
a greater range of options to distinguish among companies that commit crime.
The policy is sending an undeniable message:
forward, cooperate, and remediate. We are going to be closely examining how
companies discipline bad actors and reward the good ones.
one goal in this area
– as we have repeatedly emphasized –
And we can hold accountable those who are criminally culpable—no matter their
seniority—when companies come forward and cooperate with our investigation.
The revised CEP provides incentives for companies that do not voluntarily
self-disclose but still fully cooperate and timely and appropriately remediate.
In such a case, the Criminal Division will recommend up to a 50% reduction off
of the low end of the Guidelines fine range.
To be sure, while 50% off the low end of the Guidelines range is the maximum
available (absent a voluntary self-disclosure) under the revised CEP, each and
every company starts at zero cooperation credit and must earn credit based on
the parameters and factors outlined in the CEP. This is not a race to the
bottom. A reduction of 50% will not be the new norm; it will be reserved for
companies that truly distinguish themselves and demonstrate extraordinary
cooperation and remediation. But having a greater range of cooperation and
remediation credit available—from 0% to 50%, instead of from 0% to 25%, and
using the full spectrum of the Guidelines from which to apply those
reductions—will allow our prosecutors to draw greater distinctions among the
quality of companies’ cooperation and remediation.
To our corporate citizens – the message is the same. You see, our job is not
just to prosecute crime, but to deter and prevent criminal conduct. Through our
enforcement efforts and our policies,
we are committed to
incentivizing companies to detect and prevent crime in their own operations, and
to come forward and cooperate with us when they identify criminal wrongdoing.
We need corporations to be our
allies in the fight against crime.
And we believe that our revised policies will, at the end of the day, further
our ability to bring individual wrongdoers—the corporate executives, employees,
and agents who engage in misconduct—to justice.
Your resources – particularly
your investment in your compliance function – can help increase your corporate
civic engagement and lead to lasting solutions to corporate criminality.
abbreviated. For the full press release: