For years, approximately the last 15-20 years, the Department of Justice has wanted business organizations under Foreign Corrupt Practices Act (and other scrutiny) to voluntarily disclose conduct in violation of the law (or mere potential violation of the law).

That the DOJ has made various attempts to encourage voluntary disclosure over the years – and every few years seems to tweak its voluntary disclosure and related corporate criminal enforcement policy – is seemingly an indication that its previous policies were not accomplishing the intended results.

As highlighted in this post, last week the DOJ announced revisions to its 2017 Corporate Enforcement Policy (a policy document which encouraged voluntary disclosure and built upon the 2016 FCPA Pilot Program). The revisions were in addition to revisions to the CEP released in early 2019 (see here) as well as late 2019 (see here).

This post takes a trip down memory lane and highlights various speeches by DOJ officials since at least 2006 extoling the virtues of voluntary disclosures.

In 2006 then DOJ Assistant Attorney General Alice Fisher stated:

“When serious FCPA issues do arise, we strongly encourage you and your clients to voluntarily disclose those issues. [. . .] [W]hat I can say is that there is always a benefit to corporate cooperation, including voluntary disclosure . . . The fact is, if you are doing the things you should be doing— whether it is self-policing, self-reporting, conducting proactive risk assessments, improving your controls and procedures, training on the FCPA, or cooperating with an investigation after it starts—you will get a benefit. It may not mean that you or your client will get a complete pass, but you will get a real, tangible benefit.”

Likewise, in 2009 then DOJ Assistant Attorney General Lanny Breuer stated:

“I strongly urge any corporation that discovers an FCPA violation to seriously consider making a voluntary disclosure and always to cooperate with the Department. The Sentencing Guidelines and the Principles of Federal Prosecution of Business Organizations obviously encourage such conduct, and the Department has repeatedly stated that a company will receive meaningful credit for that disclosure and that cooperation.”

Indeed, one of Breuer’s favorite talking points on the FCPA circuit was to encourage voluntary disclosure of FCPA violations and offer repeated assurances that it would result in meaningful credit by the DOJ.

In 2010, Breuer stated:

‘‘I want to assure you that the Department’s commitment to meaningfully reward voluntary disclosures and full and complete corporate cooperation will continue to be honored in both letter and spirit.’’

In another 2010 FCPA speech, Breuer stated:

‘‘If you come forward and if you fully cooperate with our investigation, you will receive meaningful credit for having done so.’’

In yet another 2010 FCPA speech, Breuer stated:

“As a former defense lawyer, I understand that the question of whether to self-report is a difficult one. But I can assure you that if you do not voluntarily disclose your organization’s conduct, and we discover it on our own, or through a competitor or a customer of yours, the result will not be the same. . . . [T]here is no doubt that a company that comes forward on its own will see a more favorable resolution than one that doesn’t.”

In a 2013 FCPA speech, then Deputy Attorney General James Cole stated:

“What is the benefit of voluntary disclosure and cooperation?’’ We fully understand that companies will act in their own best interest. So we have sought to incentivize companies with tangible benefits for their voluntary disclosure and cooperation—beyond the reductions already built into the Sentencing Guidelines. Such benefits have taken the form of declinations . . ., resolutions short of a guilty plea like deferred prosecution agreements and nonprosecution agreements, and allowing companies to selfreport their remediation efforts instead of being subject to the oversight of a corporate monitor. We have also, in appropriate cases, supported reduced penalties below those suggested by the Sentencing Guidelines.”

In a 2015 FCPA speech, then Assistant Attorney General Leslie Caldwell stated:

“[V]oluntary self-disclosure in the FCPA context does have particular value to the department. Because of that, we want to encourage self-disclosure by making clear that, when combined with cooperation and remediation, voluntary disclosure does provide a tangible benefit when it comes time to make a charging decision.”

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