Justice Department issues revised, relaxed FCPA guidance

Attention, in-house counsel: Rules concerning FCPA compliance have been relaxed in both small and significant ways. Lawyers at the firm Morrison & Foerster have compiled an easy to read, Cliff Notes version of the changes this month in a client note. In general, the MoFo lawyers say that the changes amount to common sense and make it easier for them to discern what the government expects of them during investigations.

Basically, the changes apply to data retention, government-company coordination, and antitrust. Regarding data, the new guidance applies to “ephemeral messaging,” a tech feature that employees and people worldwide seem to regard as their main mode of communication lately.

Specifically, the revised FCPA corporate enforcement policy says:

• The prohibition against ephemeral messaging systems has been removed. Instead, companies  seeking credit under the Justice Department’s Enforcement Policy should focus on ways to ensure that employee communications are retained for future collection in a potential investigation. Specifically, the original Policy required that companies seeking remediation credit “prohibit[] employees from using software that generates but does not appropriately retain business records or communications.” Under the revised Policy, companies are directed to “implement[] appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company’s ability to appropriately retain business records or communications or otherwise comply with the company’s document retention policies or legal obligations.”
• The DOJ reiterated that a company seeking full credit for cooperation must, where requested and appropriate, de-conflict witness interviews and other investigative steps that it intends to take as part of its internal investigation with the steps that DOJ intends to take as part of its investigation. In other words, the company needs to clear with the government which interviews it plans to do, and clear them with the department.
• These principles, says the DOJ, will apply also to successor companies that uncover wrongdoing in connection with mergers and acquisition. In other words, companies undergoing mergers or acquisitions can rely on the Policy if they find, through M&A due diligence or post-acquisition integration efforts, that there was misconduct at the target company. Specifically, the revised Policy states that if the company voluntarily self-discloses and otherwise takes action consistent with the Policy, there will be the presumption of a declination in accordance with and subject to the other requirements in the Policy.
• The revised Policy also relaxed the requirement that companies must provide information on all employees “involved” in the misconduct. Under the revised Policy, companies need only disclose information about any individuals “substantially involved” in the wrongdoing.