DOJ Still Trying to Figure Out FCPA


When it comes to enforcing the Foreign Corrupt Practices Act (FCPA), the U.S. Department of Justice (DOJ) is still trying to figure it out. That’s according to Mike Koehler, professor of Law at Southern Illinois University, who is an FCPA expert.  

In a recent article in the Corporate Crime Reporter, Koehler said the DOJ is “lost when it comes to resolving alleged Foreign Corrupt Practices Act violations by business organizations.” 

One of many examples Koehler points to is declinations. The DOJ’s FCPA Corporate Enforcement Policy says aggravating circumstances means no declination. But many recent FCPA cases investigated by the DOJ show the opposite to be true.  

In February, for instance, the DOJ delivered an FCPA declination with disgorgement to Cognizant Technologies. Koehler said there appeared to be plenty of aggravating circumstances according to the DOJ’s own allegations of improper conduct by high-level employees, ill-gotten gains, and improper payments.  

“The reason I say the Justice Department is lost is because the policies are constantly changing, the guidance is constantly changing,” Koehler said in the Corporate Crime Reporter article. They put out guidance and then they act inconsistent with the guidance. The Department of Justice has said as to the Cognizant enforcement action – well, if you knew what we knew, you would look at this differently.” 

For more on Koehler’s perspective and examples he provides of inconsistencies in the DOJ’s enforcement of the FCPA, consider reading the Corporate Crime Reporter article.