Coincident with the Chamber campaign—which has been the most far-reaching, public and politically successful in the FCPA’s 35-year history— the past year has seen notable refinements to FCPA enforcement practice. The DOJ and SEC have been more public about “declinations” (decisions not to prosecute after initiating an FCPA investigation) and the reasons; they have awarded more (or at least clearer) credit to companies for cooperation and quality compliance efforts; and there has been an easing of some settlement conditions (in particular, mandated independent monitors). The DOJ and SEC also have been clearer about not prosecuting de minimis violations, have taken steps to encourage internal reporting by Dodd-Frank whistleblowers, and have been more expansive in advisory guidance.
Speaking at a recent national conference on the FCPA, Assistant Attorney general Lanny Breuer reaffirmed the U.S. commitment to “combating corruption around the world,” describing FCPA enforcement as one of the DOJ’s “signature achievements” and part of a record that has put the U.S. “on the right side of history.”4 At the same time, there was a recognition that the DOJ and SEC needed “to strike an appropriate balance between vigorous and responsible enforcement.” As an illustration, Breuer cited the DOJ’s decision last April not to charge Morgan Stanley directly for an employee’s bribery because the violation had been self-disclosed, and because the firm had cooperated with the investigation and could point to a rigorous compliance program. In another case, involving potential successor liability, a similar judgment not to prosecute was made based on the pre-acquisition due diligence conducted. In both instances, declinations were publicized to encourage similar proactive efforts by others.