New DOJ Policy Against Piling On Has Rewards, with Strings Attached
For the FCPA Blog, White Collar Defense and Investigations attorneys Lara Covington and Michael Hantman co-wrote a post about the Department of Justice's new policy against "piling on" duplicative corporate penalties. As the authors explain, though this policy has rewards—such as greater certainty and finality in settlements, an emphasis on fairness and law and decreased impact on innocent employees, customers and stakeholders—it makes it clear that the DOJ is situating themselves above all other agencies.
The department has stated that cooperating with a different agency or a foreign government "is not a substitute" for cooperating with them, and they "will not look kindly on companies that come to the DOJ only after making inadequate disclosures to secure lenient penalties with other agencies or foreign governments." Due to this sentiment, the authors believe this policy should be celebrated guardedly by corporate America.
In addition, this new policy complements and bolsters the revised FCPA Corporate Enforcement Policy announced by the DOJ in November 2017, under which companies receive discounts from potential penalty amounts based on the adequacy of their voluntary self-disclosure, cooperation and remediation. Both policies are part of Deputy Attorney General Rod Rosenstein's efforts to end a perceived unfairness in how criminal penalties are levied.