During remarks at the American Conference Institute’s 20th Anniversary New York Conference on the Foreign Corrupt Practices Act, Deputy Attorney General Rod Rosenstein says he wants to reduce the number of cases where companies face multiple enforcement actions by different agencies for the same conduct. “It is important for us to be aggressive in pursuing wrongdoers, but we should discourage disproportionate enforcement of corruption laws by multiple authorities,” Rosenstein said. “In highly regulated industries, a company may be accountable to multiple regulatory bodies. That creates a risk of repeated punishment that goes beyond what is necessary to rectify the harm and deter future violations.”
Rosenstein announced a new policy instructing DOJ components to coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company for the same conduct. There are four core features of the new policy:
- The policy reaffirms that the federal government’s criminal enforcement authority should not be used against a company for purposes unrelated to the investigation and prosecution of a possible crime. Department attorneys may not invoke the threat of criminal prosecution solely to persuade a company to pay a larger settlement in a civil case.
- The policy addresses situations in which DOJ attorneys in different components and offices may be seeking to resolve a corporate case based on the same misconduct. The new policy directs DOJ components to coordinate with one another, and achieve an overall equitable result.
- The policy encourages DOJ attorneys, when possible, to coordinate with other federal, state, local, or foreign enforcement authorities seeking to resolve a case with a company for the same misconduct.
- The new policy sets forth some factors that DOJ attorneys may evaluate in determining whether multiple penalties serve the interests of justice in a particular case. Factors identified in the policy that may guide this determination include the egregiousness of the wrongdoing; statutory mandates regarding penalties; the risk of delay in finalizing a resolution; and the adequacy and timeliness of a company’s disclosures and cooperation with the department.