Overseas & Out of Time: DOJ Reforms Boost Cross-Border Risk

White Collar Defense and Investigations attorney Eddie Jauregui was cited in a Law360 article discussing how companies will balance meeting the U.S. Department of Justice's (DOJ) expectations for "timely" disclosures with compliance with foreign data privacy laws. Recent revisions to the DOJ's corporate criminal enforcement policies indicate that the government will be watching closely how quickly companies disclose information about misconduct, as well as take action or discard cooperation credit if it thinks a company is dragging its feet. In addition, an expansion of a Foreign Corrupt Practices Act (FCPA) Unit policy means all DOJ offices that prosecute corporate crime must enforce rules requiring companies to disclose documents located both in the U.S. and abroad. This development creates new concerns for companies and counsel, given that they may now find themselves stuck between trying to appease the DOJ while not violating laws like the European General Data Protection Regulation (GDRP).

Mr. Jauregui said the DOJ will most likely judge the timeliness of disclosures on a case-by-case basis. He said the government wants companies to disclose information on potential misconduct as soon as they learn of it, but it can be tricky to determine whether the misconduct did occur, especially when the situation is not an obvious one.

"The difficulty that can arise is [if you're] trying to figure out if in fact there was misconduct," Jauregui said. "...If you have just been given information, and you're trying to figure out whether or not misconduct was committed, that I think is just going to take time."

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