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Foreign Corrupt Practices Act & Anti-Corruption

DOJ supervisor over fraud section addresses Global Forum on Anti-Corruption Compliance

DOJ FCPA Anti-Corruption

On July 25, Deputy Assistant Attorney General Matthew Miner, who oversees the Fraud Section as well as other parts of the Criminal Division, spoke at ACI’s 9th Global Forum on Anti-Corruption Compliance in High Risk Markets. His speech focused on the DOJ’s efforts to combat global corruption, with a focus on merger and acquisition activity. Miner emphasized, among other things, the efforts the Department was taking to reduce global corruption, highlighting in particular the DOJ’s permanent enshrinement of the FCPA self-disclosure program. He pointed to a recent success of that program, the DOJ’s declination of prosecution against a commercial data company for hiring-related misconduct by its recently acquired China subsidiaries, previously discussed here. Miner also discussed the Department recent “anti-piling on policy,” under which it gives credit for penalties paid to other enforcement authorities for the same misconduct. As an example of this policy, he noted how the Department credited 50% of the fine a French multinational banking and financial services company paid to French authorities for FCPA-related misconduct in a recent enforcement action.

Miner asserted that the Department would like to do a better job providing guidance to companies facing FCPA risk through mergers and acquisitions, particularly when such activity is in high-risk industries and markets. He quoted from the DOJ’s 2012 Resource Guide, noting that in an acquisition, “a successor company’s voluntary disclosure, appropriate due diligence, and implementation of an effective compliance program may also decrease the likelihood of an enforcement action regarding an acquired company’s post-acquisition conduct when pre-acquisition due diligence is not possible.” Addressing pre-acquisition diligence, Miner stated that when an acquiring company encounters corruption issues during the diligence process, it should come to the Department for guidance through its FCPA Opinion Procedures before moving forward. Miner stated that not enough companies are taking advantage of this “tremendous resource.”

Miner commented overall that with these policies and procedures, the Department hopes “to incentivize companies to invest in effective compliance programs and robust control systems to prevent misconduct and, in the event of a detected violation, to take full advantage of [the DOJ’s] enforcement approach.”

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