In back-to-back speeches on May 9, 2018, Deputy Attorney General Rod Rosenstein announced a new DOJ policy to address concerns related to “piling on” by multiple agencies and to encourage coordination among DOJ components and other agencies when imposing penalties for the same conduct. Noting concerns regarding fairness and the risk of excessive punishments, Rosenstein described the policy as “another step toward greater transparency and consistency in corporate enforcement.” The new policy, as outlined by Rosenstein in the two speeches and a separate memorandum made public the same day, directs DOJ components to coordinate with one another to achieve an “overall equitable result” with regard to investigations of the same conduct and encourages DOJ attorneys to coordinate resolutions with other federal, state, local, and foreign agencies “when possible.” The policy further sets out factors that DOJ attorneys may use to evaluate whether multiple penalties serve the interests of justice in a specific case, including the egregiousness of a company’s conduct and the adequacy and timeliness of its disclosures and cooperation. Rosenstein also noted the establishment of a new Working Group on Corporate Enforcement and Accountability within the DOJ to promote consistency in white collar enforcement efforts.
In remarks on recent developments in FCPA enforcement, Rosenstein noted that eight FCPA-related guilty pleas had been announced in 2018, emphasizing the importance of assistance provided by the SEC and foreign enforcement agencies. He also discussed the the first corporate declination under the new FCPA Corporate Enforcement Policy, noting that the company engaged in responsible conduct following its discovery of potential misconduct and satisfied the “rigorous requirements” of the Department’s new policy, which was announced in November 2017.