APPENDIX 13. A proposal for a United States Department of Justice foreign corrupt practices act leniency policy (Robert W. Tarun and Peter P. Tomczak), excerpted from a law review article first published in 47 am. crim. l. rev 153 (2010)

• Author: Robert W. Tarun
• Pages: 627-633

APPENDIX 13

A Proposal for a United

States Department of Justice

Foreign Corrupt Practices Act

Leniency Policy1

Robert W. Tarun and Peter P. Tomczak

Excerpted from a law review article first published in

47 Am. Crim. L. Rev 153 (2010)

1. LENIENCY BEFORE AN INVESTIGATION HAS BEGUN–

PART A

Leniency (i.e., non-prosecution) shall be granted to a corporation and its affiliates, and

certain corporate employees and agents, reporting improper payment(s) to a foreign

official before an investigation has begun, if the following eight conditions are met:

(a) At the time the corporation comes forward and reports the improper

payment activity, the Fraud Section has not received credible informa-

tion from any other source about the improper payment activity being

reporting by the corporation;

(b) The corporation elects within sixty (60) days after receiving and

promptly verifying preliminary allegations of improper payments to

conduct a thorough internal investigation, to disclose fully all mate-

rial underlying facts and the results of the investigation to the DOJ

and/or SEC, and to fully cooperate with the agency(ies);

(c) The corporation, upon its discovery of the improper payment activity

being reported, takes steps to reasonably investigate and, thereafter,

take prompt and effective action to terminate the activity;

(d) In reporting improper payment activity, the corporation with can-

dor and completeness discloses all material underlying facts and pro-

vides full, continuing and complete cooperation to the Fraud Section

throughout the investigation;

(e) The confession of improper payment activity is truly a corporate act, as

opposed to isolated confessions of individual executives or employees;

(f) If possible, the corporation makes restitution to injured parties –

depending on whether the corporation was active or passive and

whether the host or foreign country prosecutes the officials who par-

ticipated in the acts of bribery;

(g) The corporation has not been named in an FCPA enforcement pro-

ceeding, including a deferred prosecution agreement or a non-prose-

cution agreement, in ten (10) years; and

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