You are a major multinational corporation and you have paid bribes overseas.

Under the Justice Department’s new Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy, if you play your cards right, you can qualify for what is called “a presumption of declination.”

It’s a new twist on the Department’s old FCPA Pilot Program.

“That is a significant additional incentive,” Miller & Chevalier partner Homer Moyer told Corporate Crime Reporter in an interview last month. “The prior policy said if you disclose, cooperate and remediate, the Justice Department will consider a declination. Now there is a presumption of declination.”

“Let’s remind ourselves that the FCPA is not a statute that requires companies to report or disclose or self report. There are laws, like the anti-boycott law, that require reporting. But this is not one of those laws. The zone we are in is the zone of encouraging voluntary self-disclosures and creating incentives for that.”

“The agencies rely on voluntary disclosures to develop the large number of cases that we have seen. The presumption of declination is a significant incentive offered by the right hand.”

“The left hand narrows that with the qualification that you don’t get those benefits if there are aggravating circumstances. That narrows somewhat the applicability of the incentive. The aggravating circumstances generically are the seriousness of the violation and the nature of the company. By the nature of the company, they are referring to whether or not the company is a recidivist or repeat offender. An interesting unanswered question is how that will be interpreted. In the prior policy, a recidivist was a company that had an FCPA violation in the previous five years. There is no time limit in this new policy. That’s an interpretive question.”

“Another is whether there are significant profits. Question – what does significant mean? There are typically some benefits that flow to a company as a result of improper payments. There are some interpretive questions about these aggravating circumstances and how they will be construed. If you have senior management involved, that’s an aggravating circumstance. If the misconduct is pervasive, if it’s part of the corporate strategy and culture, you are not going to qualify for the declination.”

When you say declination, it’s not the kind of declination where nobody hears about it, correct?

“The policy defines the term declination. And it defines it to mean a case in which the government otherwise would prosecute or resolve the case. Those of us out in the real world use the term declination a little more broadly. It does not mean and should not mean that these are the only circumstances in which the government would decide to take no action. It decides that often and for a whole variety of reasons ranging from questionable jurisdiction to uncertain proof to considerations of equity, leniency, behavior of the company.”

“My assumption is that this describes a category of cases in which the government is seeking to offer certain minimum benefits for companies that qualify. I don’t think that means this is the only time the government will walk away from the case.”

Let’s look at a hypothetical. Major multinational corporation engaging in serious bribery but at lower levels of the company, doesn’t make it into the C-Suite, no previous problem with the FCPA, self-reporting and cooperation. Does that qualify for the presumption of declination?

“If you meet the defined standards – voluntary disclosure, full cooperation and remediation – you are a candidate for declination. The question in your hypothetical is – how serious is the bribery and how large are the resulting profits?”

“The question I thought you were going to ask – under those same facts, the company elected not to disclose voluntarily but dealt effectively with that issue, had a strong compliance program that was enhanced in response to the problem, but did not disclose and that information later becomes public. Are they disqualified from the government’s taking no action? My answer is – the government retains prosecutorial discretion which it exercises all the time. And this new policy describes a category of cases but does not pre-empt the broader prosecutorial discretion that the government has.”

How different is this new policy from the original pilot program?

“That depends on how the phrase ‘aggravating circumstances’ is construed. I also think that there is a question embedded in these announcements – a policy question. Could this be a signal of a tilt toward more prosecutions of individuals and potentially a tilt away from prosecution of corporations? Rod Rosenstein made a comment in his speech which was noteworthy and a little surprising. He said this – ‘It makes sense to treat corporations differently than individuals, because corporate liability is vicarious – it is only derivative of individual liability.’”

“That of course is true. Corporations are legal persons and they violate the law when individuals in the company do things that are inconsistent with law. At the same time, that could be read as suggesting a tilt away from corporations.”

“And if so, that would have significant implications. Under the OECD Convention, for example, one of the issues for signatories is whether or not a country’s legal system provides for liability of legal persons – namely corporations. And the United States has pushed for that in terms of implementing international conventions robustly.”

“One thing to watch in the next several months is whether we see a change in the established patterns of prosecuting corporations as well as individuals. If that were to happen, that could be a significant change.”

Are you seeing any evidence of a change in on the ground real life FCPA enforcement compared to the previous administration?

“No. But you have to add to that that many of the cases that are becoming public now originated in the previous administration. But at a recent conference we heard both from Rod Rosenstein and Steve Peikin at the SEC that enforcement of the FCPA will be robust.”

“The point that I just raised about corporate enforcement is a bit looking at the tea leaves of the speech announcing this new policy. But no, we have not seen anything that I would cite as evidence of changing enforcement policies with respect to corporations.”

[For the complete q/a format Interview with Homer Moyer, see 32 Corporate Crime Reporter 1(12), Monday January 1, 2018, print edition only.]