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The FCPA Pilot Program was introduced on April 5, 2016 as a one year experiment that sought to ‘motivate companies to voluntarily self-disclose FCPA-related misconduct, fully cooperate with the Fraud Section and …remediate flaws in their controls and compliance programs”. In exchange for both full cooperation and voluntary self-disclosure, the program promised a full range of mitigation options would be available to the company including possible declination of prosecution. https://www.justice.gov/criminal-fraud/file/838416/download
On March 10th, at the annual ABA White Collar Institute, Kenneth A. Blanco, the acting chief of the criminal divisional the Department of Justice announced that the FCPA Pilot Program would be undergoing an evaluation process to determine whether the program will be extended, amended, or terminated. During the evaluation process, Blanco stated that the Pilot Program will continue in its current form and would not expire on April 5th.
Since the pilot program began, DOJ has issued 5 declination letters which surprisingly included two privately held corporations. While the program was initiated to provide more transparency and consistency in the resolution of FCPA matters, the jury is still out on whether the program has achieved its goals. Since DOJ attorneys are not required to follow the Pilot Program when pursuing cases, its discretionary application creates uncertainty for corporations when deciding how to proceed. For example in 2016 alone, DOJ collected a record $2.43 billion in fines and penalties in multi-jurisdictional corruption cases. Companies need to carefully consider their options when determining whether to participate in the program or not and note any new changes to the program in the future.
If you would like to further discuss this client alert, please contact Claire Rauscher at 704.331.4961 or CRauscher@wcsr.com or any Womble Carlyle attorney with whom you normally work.