The Justice Department has issued guidance for corporations facing bribery prosecutions under the Foreign Corrupt Practices Act (FCPA).

“The guidance provides that if a company chooses not to voluntarily disclose its FCPA misconduct, it may receive limited credit if it later fully cooperates and timely and appropriately remediates – but any such credit will be markedly less than that afforded to companies that do self-disclose wrongdoing,” said Criminal Division chief Leslie Caldwell. “By contrast, when a company not only cooperates and remediates, but also voluntarily self-discloses misconduct, it is eligible for the full range of potential mitigation credit. That means that if a criminal resolution is warranted, the Fraud Section may grant a reduction of up to 50 percent below the low end of the applicable U.S. Sentencing Guidelines fine range, and generally will not require appointment of a monitor. In addition, where those same conditions are met, the Fraud Section’s FCPA Unit will consider a declination of prosecution.”

But what about a case like Vimpelcom, settled earlier this year by the Justice Department with a deferred prosecution agreement and 45 percent fine reduction?

“Without commenting on any specific cases, under the new pilot program, if a company has not voluntarily disclosed its FCPA misconduct in accordance with the guidance, the Fraud Section’s FCPA Unit will accord at most a 25% reduction off the bottom of the Sentencing Guidelines fine range,” a Justice Department spokesman said.

But no Justice Department official would address the question of what kind of settlement — guilty plea, deferred prosecution, non prosecution — would be entered into for a company like Vimpelcom that does not self-report.

The guidance itself does not address the question.

Last month, in an interview with Corporate Crime Reporter, Chuck Duross a partner at Morrison & Foerster in Washington, D.C. and the former head of the FCPA unit at the Justice Department, questioned what kind of message the Department was sending with a resolution like that in Vimpelcom.

“A case like Vimpelcom cuts both ways,” Duross said. “On the one hand, the Department says — it was 45 percent off, but they would have gotten more if there was a voluntary disclosure and they would have gotten better treatment. You can also look at Vimpelcom and say — wait, if you are not going to voluntarily disclose and get a deferred prosecution agreement for the parent and a 45 percent reduction off the bottom of the range for just cooperating and not voluntarily disclosing, maybe I should just keep my head low and if they come talk to me I’ll aim for my 45 percent off and a deferred prosecution.”