International Trade Enforcement Roundup | January 2023

DOJ Revise its FCPA Corporate Enforcement Policy (CEP)

A policy change. On January 17, DOJ announced it had revised the CEP to provide companies greater clarity into how their actions following a violation can impact potential penalties. The new policy, entitled the Corporate Enforcement and Voluntary Self Disclosure Policy does the following: 1. Allows declinations even in situations where there are aggravating factors. 2. Increases the amount of credit to be awarded to companies for voluntarily disclosing past misconduct even in situations where the DOJ declines to prosecute. 3. Provides incentives for companies to cooperate even if they do not voluntarily disclose. The new policy is intended to encourage more voluntary self-disclosures and corporate cooperation in all criminal matters. The DOJ press release can be found here. The Corporate Enforcement and Voluntary Self Disclosure Policy can be found here. Notably. While the new policy may provide more clarity on corporate penalties, the policy also affords the DOJ broad discretion when offering recommendations for sentencing. To be awarded a declination in the presence of aggravating circumstances, a company must show “extraordinary cooperation” and “extraordinary remediation” – heightened standards from the “full cooperation” and “appropriate remediation” language of the CEP. Assistant Attorney General Kenneth Polite, Jr. described the threshold as “not just run of the mill, or even gold-standard cooperation, but truly extraordinary.” This seems likely to be a hard standard to meet. Future enforcement Please contact the authors if you have any questions about these enforcement updates and how they may impact your business.

International Trade Practice Group

The Bass, Berry & Sims International Trade Practice Group helps clients navigate the complex regulations associated with a global marketplace. Our team is experienced in guiding clients through challenging issues related to economic sanctions (OFAC), exports (DDTC and the ITAR; BIS and the EAR), imports (CBP), anti- bribery (DOJ and SEC), anti-boycott regulations (OAC and Treasury), and the Committee on Foreign Investment in the United States (CFIUS). Our work in this area has been recognized in leading legal industry outlets, including Chambers USA , whose research revealed “Bass, Berry & Sims represents a range of clients in export controls and economic sanctions matters. The team is experienced in handling EAR, OFAC and ITAR issues.” A client added, “Bass, Berry & Sims is very responsive and service-oriented.” (from Chambers USA 2022 ). Learn more here.

Thaddeus R. McBride 202-827-2959 |

Thad McBride advises public and private companies on the legal considerations essential to successful business operations in a global marketplace. He focuses his practice on counseling clients on compliance with U.S. export regulations (ITAR and EAR), economic sanctions and embargoes, import controls (CBP), and the Foreign Corrupt Practices Act (FCPA). He also advises clients on anti-boycott controls, and assists companies with matters involving the Committee on Foreign Investment in the United States (CFIUS).

8 International Trade Enforcement Roundup |

Powered by