James Tillen Comments on First Declination Under DOJ's FCPA Corporate Enforcement Policy in Compliance Week
"Lessons to Be Learned From First Declination Under New FCPA Policy"
James Tillen commented on the Department of Justice's (DOJ's) first declination under its Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy, which was issued to commercial data and analytics provider Dun & Bradstreet (D&B) in relation to conduct by the company's subsidiaries in China. "It's interesting that [D&B] still got credit for voluntary disclosure, even though it was a prompted by a Chinese government investigation," Tillen said. Referencing Kokesh v. SEC and resulting IRS Guidance stating that disgorgement is not tax deductible, Tillen stated that "[n]one of the payments they are making as a result of the FCPA resolution can be deducted," he said. The case speaks also to "the importance of doing thorough due diligence pre-acquisition, and then acting upon it, addressing those red flags immediately upon the close of the acquisition, integrating the acquisition into the internal controls of the company and the compliance program of the company, subjecting it to audits and reviews, and remediating based on any findings that come from those audits and reviews," Tillen said.