January 31, 2017

In this article, Jenner & Block Partners Nicholas R. Barnaby and Robert R. Stauffer analyze a one-year pilot program, launched in April 2016, that aims to encourage corporations to comply with the Foreign Corrupt Practices Act and cooperate with government enforcement efforts.  The authors explain that the DOJ “used the pilot program to significantly emphasize voluntary disclosure, while also announcing very significant penalties in matters in which the settling company did not disclose its misconduct to the DOJ.  Thus the DOJ appears to be brandishing both an increasingly formidable stick and a more appealing carrot in its effort to incentivize compliance and cooperation.”  They examine requirements of the program, review some cases where it was implemented, and discuss criticism of it. They conclude that “while the carrot-and-stick approach may not entirely reset corporate incentives when facing a potential FCPA issue, the DOJ's efforts in 2016 can assist corporations by better defining the potential benefits for corporate self-disclosure, cooperation or remediation.”