Dive Brief:

• The Department of Justice declined to prosecute Corsa Coal Corporation earlier this year even though it used bribes to secure $143 million in coal contracts from a state-owned Egyptian company, Deputy Attorney General Marshall Miller told attorneys and compliance executives September 21.
• The company voluntarily provided information to DOJ about individual wrongdoers and stepped up to remediate, cooperate and disgorge profits, Miller said at a Global Investigations Review meeting.
• “Because the company stepped up and owned up, it received a declination,” said Miller.

Dive Insight:

Deputy Attorney General Lisa Monaco has made voluntary self-disclosure a major initiative of DOJ’s Criminal Division and for the first time all 94 U.S. attorneys offices operate under the same policy, Miller said. 

“The revised policy makes clear that even companies that have so-called ‘aggravating circumstances’ still have a path to a declination if they come forward and voluntarily self-disclose,” he said. “Early returns demonstrate that department components are following through on their voluntary self-disclosure policy commitments.”

One phase of the policy that will get more attention going forward is when a company discovers misconduct in a target company when it's conducting due diligence for an acquisition or as part of the integration after the deal is completed.

The policy, Miller said, “offers the incentive of the prospect of a declination – in essence, a safe harbor – for misconduct reported to the department that is uncovered during pre- or post-acquisition due diligence.”

Miller pointed to the department’s decision last year in December to decline prosecuting U.S. aerospace supplier Safran.

“The company voluntarily self-disclosed that two companies it acquired paid a consultant to win contracts with the Chinese government, knowing that some of the money would be used to bribe senior officials,” he said. “The conduct ended prior to the acquisition. Safran timely voluntarily self-disclosed, cooperated, and remediated, and the company thus secured a declination with disgorgement.”

DOJ is working toward an extension of this approach across the department as part of its efforts to promote and standardize voluntary self-disclosure. 

“That extension will highlight the critical importance of the compliance function having a prominent seat at the table in evaluating and de-risking M&A decisions,” he said.

Deputy Attorney General Monaco is expected to address in more detail voluntary self-disclosure in the M&A context in the near future, he said.