Overview of DOJ Non‑Prosecution Agreements and Declinations in FCPA Cases

75 Non-Prosecution Agreements Under a non-prosecution agreement, or an NPA as it is commonly known, DOJ maintains the right to file charges but refrains from doing so to allow the company to demonstrate its good conduct during the term of the NPA. Unlike a DPA, an NPA is not filed with a court but is instead maintained by the parties. In circumstances where an NPA is with a company for FCPA-related offenses, it is made available to the public through DOJ’s website. The requirements of an NPA are similar to those of a DPA, and generally require a waiver of the statute of limitations, ongoing cooperation, admission of the material facts, and compliance and remediation commitments, in addition to payment of a monetary penalty. If the company complies with the agreement throughout its term, DOJ does not file criminal charges. If an individual complies with the terms of his or her NPA, namely, truthful and complete coopera- tion and continued law-abiding conduct, DOJ will not pur- sue criminal charges. Declinations As discussed above, DOJ’s decision to bring or decline to bring an enforcement action under the FCPA is made pursuant to the Principles of Federal Prosecution, in the case of individuals, and the Principles of Federal Prosecution of Business Organizations, in the case of companies. As described, in the case of individuals, the Principles of Federal Prosecution advise prosecutors to weigh all relevant consid- erations, including: e federal law enforcement priorities; e the nature and seriousness of the offense; e the deterrent effect of prosecution; e the person’s culpability in connection with the offense; e the person’s history of criminal activity; e the person’s willingness to cooperate in the investi- gation or prosecution of others; and e the probable sentence or other consequences if the person is convicted.” The Principles of Federal Prosecution provide addi- tional commentary about each of these factors. For instance, they explain that prosecutors should take into account federal law enforcement priorities because federal law enforcement and judicial resources are not sufficient to permit prosecution of every alleged offense over which federal jurisdiction exists. The deterrent effect of prosecu- tion should also be kept in mind because some offenses, “although seemingly not of great importance by themselves, if commonly committed would have a substantial cumula- tive impact on the community?! As discussed above, the Principles of Federal Prosecution of Business Organizations require prosecutors to consider nine factors when determining whether to prose- cute a corporate entity foran FCPA violation, including the nature and seriousness of the offense; the pervasiveness of wrongdoing within the company; the company’s history of similar conduct; the existence and effectiveness of the com- pany’s pre-existing compliance program; and the adequacy of remedies, such as civil or regulatory enforcement actions. Pursuant to these guidelines, DOJ has declined to prosecute both individuals and corporate entities in numer- ous cases based on the particular facts and circumstances presented in those matters, taking into account the avail- able evidence.*** To protect the privacy rights and other interests of the uncharged and other potentially interested parties, DOJ has a long-standing policy not to provide, without the party’s consent, non-public information on matters it has declined to prosecute. To put DOJ’s declina- tions in context, however, in the past two years alone, DOJ has declined several dozen cases against companies where potential FCPA violations were alleged. As mentioned above, there are rare occasions in which, in conjunction with the public filing of charges against an individual, it is appropriate to disclose that a company is not also being prosecuted. That was done in a recent case where a former employee was charged but the former corporate employer was not? HOUSE_OVERSIGHT_022577