When the Justice Department investigates corporate criminal wrongdoing, but then decides not to criminally prosecute, you won’t know.

These declinations are generally not made public.

But earlier this year, the Department did go public with a declination in Foreign Corrupt Practices Act (FCPA) case involving Morgan Stanley.

In that case, the Justice Department criminally prosecuted a “rogue employee” but declined to prosecute Morgan Stanley, citing the company’s compliance program. And the declination made news in the corporate crime defense bar.

Greg Andres says it was the first time the Department has publically announced a corporate declination in an FCPA case.

And he thinks it sets an important precedent.

Andres is with Davis Polk in New York.

We interviewed Andres last week, just days before the Justice Department released its FCPA guidance.

“Clearly, the Justice Department is sending a signal by publically declining a case,” Andres said. “I believe it is the first ever public declination. The Justice Department is signaling in a much more explicit way what they think is important about compliance and the benefits of having a robust compliance program in terms of a company’s criminal and FCPA exposure.”

“The Morgan Stanley case sets an important precedent and provides guidance in a way that the Department had not previously done,” Andres said.

“The Department of Justice points to specific parts of the Morgan Stanley compliance program. And that is what is relevant. They cite specific factors – the number of trainings, the types of trainings, the fact that they had policies and procedures in place. That part of the prosecution is what is significant for the corporate community. And it was done in the context of a particular case. A certain type of training in a certain region of the world was important to the Department. That is what is important about that prosecution.”

In the guidance that was released last week – after our interview with Andres – the Justice Department reiterated that “in the past two years alone, the Department of Justice has declined several dozen cases against companies where potential FCPA violations were alleged.”

The Department said that “to protect the privacy rights and other interests of the uncharged and other potentially interested parties, the Department has a long-standing policy not to provide, without the party’s consent, non-public information on matters it has declined to prosecute.”

We asked Andres – how should the Department decide whether or not to make declinations public?

“I don’t think it is the type of area where you can necessarily have a bright line rule,” he said. “The company should have a say in it. If they have been investigated and in effect absolved, there are real reasons why they wouldn’t want it publicized. In effect, it would be negative publicity.”

“Take a case where there is a high degree of publicity – whether officially by the Department or not. In the context of the financial crisis, there has been a lot of discussion about specific companies. In those cases, there is a place for a public declination.”

“In matters in which there is a substantial amount of publicity, there is a valid basis, a good reason for the Department to publically decline those prosecutions.”

In his previous life with the Justice Department, Andres went to Capitol Hill to defend the Department’s position against the need for a compliance defense. But now as a private defense attorney, he hedges.

“I don’t know that I would take a specific view on that,” Andres said. “I’m certainly aware of what the government’s arguments were in favor. You have to remember the context. The UK Bribery Act includes a compliance defense. That was the specific legislation that people were using to make the argument for the compliance defense.”

“The Department argued that compliance is one of a variety of different factors that they currently take into consideration under the Principles of Federal Prosecution of Business Organizations.”

[For the complete transcript of the Interview with Greg Andres, see 26 Corporate Crime Reporter 45(12), November 19, 2012, print edition only.]