CORPORATE CRIME REPORTER
Make Non Pros FCPA Cases Public
26 Corporate Crime Reporter 8, February 20, 2012
The Department of Justice prosecutes maybe 10 to 15 Foreign Corrupt Practices Act (FCPA) cases a year.
Upward of 80 percent of those cases in recent years have been as a result of voluntary disclosures.
But what about voluntary disclosure cases where the government decides not to prosecute?
Searching public records, James Tillen and Marc Alain Bohn of Miller & Chevalier recently found twelve such cases in 2010 and only in 2011.
The firm also identified “several additional cases that might represent declinations, but for which we could find no explicit confirmation of a decision to decline prosecution.”
None of these cases were disclosed publically by the Justice Department.
Butler University’s Mike Koehler was one of the first – if not the first – to call on the Department to make those non prosecution decisions public.
Under Koehler’s proposal, made in August 2010, when a company voluntarily discloses an FCPA internal investigation to the Department and the SEC and when the Department and the SEC decline enforcement, those agencies would be required to publicly state, in a thorough and transparent manner, the facts the company disclosed to the agencies and why the agencies declined enforcement on those facts.
Miller & Chevalier partner Homer Moyer agrees.
Moyer wants internal Department of Justice guidance that voluntarily disclosed matters must normally be resolved by the Department within 90 days after completion of an internal investigation, that agencies should make public their calculations of credit for voluntary disclosure and coordination, and that the Department will publish “sanitized summaries” of its declinations.
Others are now jumping on the bandwagon.
One problem – the Justice Department doesn’t like the idea.
In October 2011, FCPA unit chief Charles Duross was asked about publicizing declinations.
Duross told Main Justice that he was not “particularly comfortable doing it” and that disclosing declinations was a “very foreign concept” to him.
But the Department ought to get over its qualms.
The public has a right to know not only what cases the government is prosecuting after a voluntary disclosure, but also what cases the government is choosing not to prosecute after a voluntary disclosure.
If non pros decisions are made public, we might get a better sense as to whether the government is abusing its prosecutorial discretion.
By bringing cases it shouldn’t.
Or not bringing cases it should.
Corporate Crime Reporter
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