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The Champion

September-October 2018 , Page 36 

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Happy Birthday, FCPA: Implications of DOJ’s New FCPA Corporate Enforcement Policy on the Act’s 40th Anniversary

By Justin C. Danilewitz and Albert F. Moran

Having celebrated the 40th anniversary of the Dec. 19, 1977, passage of the Foreign Corrupt Practices Act (“FCPA”) into law, this article is offered in celebration of the occasion. Fittingly, the U.S. Department of Justice (“DOJ”) itself marked the anniversary with a major policy announcement on the eve of the FCPA’s anniversary, in a Nov. 29, 2017, speech by Deputy Attorney General (“DAG”) Rod Rosenstein regarding the new “Foreign Corrupt Practices Act Corporate Enforcement Policy” (the “Policy”), now set forth in Section 9-47.120 of the U.S. Attorneys’ Manual (“USAM”).1 

The Policy adopts and formalizes the so-called “Pilot Program” (discussed below), is the most extensive and substantial change to the USAM section on the FCPA to date, and has notable implications for both companies and individuals. Most significantly, the Policy promises substantial benefits for cooperative companies — including, in the usual case, a presumptive “declination” of prosecution provided that the Policy’s

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