Presumption of Declination Migrates from FCPA to All Corporate Crime Cases

The Justice Department announced last month that it will apply its Foreign Corrupt Practices Act (FCPA) Enforcement policy of presuming declination in cases where the corporation voluntarily discloses to other corporate crime cases.

And it didn’t take long for the new policy to take effect.

On February 28, 2018, the Department declined prosecution in a case involving Barclays after the company agreed to pay back $12.9 million wrongfully gained profits. Barclays executives were charged with crimes involving a foreign exchange front running scheme.

Barclays was represented in the case by Alexander Willscher of Sullivan & Cromwell in New York and by Joel Green of Wilmer Cutler in Washington, D.C.

In a declination letter to Willscher and Green, the Department said that Barclays misappropriated confidential information provided to Barclays by Hewlett Packard with regard to foreign exchange options and spot transactions and deceived Hewlett Packard about the nature of its trading, in violation of its duties to Hewlett Packard.

The Department said it declined to prosecute Barclays because of its voluntary disclosure, the bank’s thorough and comprehensive investigation of the matter, its full cooperation and its full remediation.

“We are committed to finding effective ways to ensure that individual wrongdoers are held accountable for corporate criminal behavior,” said Deputy Attorney General Rod Rosenstein. “One aspect of that goal is to punish the people who make or knowingly participate in decisions that violate the law. The corollary to that concept is equally vital. We want to avoid imposing penalties that disproportionately punish innocent employees, shareholders, customers, and other stakeholders. Corporate misconduct can be serious or pervasive enough that an entity-level criminal resolution is warranted.  We will pursue that outcome when appropriate. But we think carefully about accountability and fairness.”

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