In this episode, I visit with Morrison and Foerster partner James Koukios on the Department of Justice (DOJ) new policy regarding Foreign Corrupt Practices Act (FCPA) enforcement. Last week, Deputy Attorney General Rod Rosenstein, in a speech, called it the FCPA Corporate Enforcement Policy and stated that it is now “incorporated into the United States Attorneys’ Manual.” The new Policy has four sections: 9-47.100 Introduction; 9-47.110 Policy Concerning Criminal Investigations and Prosecutions of the Foreign Corrupt Practices Act; 9-47.120 FCPA Corporate Enforcement Policy and 9-47.130 Civil Injunctive Actions.
Koukios is a former DOJer who worked in the FCPA Unit of the Fraud Section at the DOJ. He brings a unique insight into some of the enforcement aspects of the new policy. Koukios highlighted three areas. The first is the creation of a presumption of declination for a self-disclosing, extensively cooperating, remediating and then disgorging any ill-gotten gain, through the mechanism of profit disgorgement. The second was the formalization of the category of declination created under the DOJ’s FCPA Pilot Program of declinations with disgorgement. The third issue raised by Koukios was what he believed was the lack of engagement with the business community over information is might have provided about what was or was not working under prior enforcement regimes; from the international business community perspective. This type of business involvement was used in the development of the 2012 FCPA Guidance, issued by the DOJ and SEC. Koukios felt this would have been a plus.