James Tillen commented on the Department of Justice's (DOJ) slow start of Foreign Corrupt Practices Act (FCPA) enforcement in 2015. The DOJ has not resolved an FCPA investigation with an enforcement action this year, even though the Securities and Exchange Commission (SEC) brought two administrative actions and entered a deferred prosecution agreement in the same time frame. There are several possible explanations for the relative dearth of enforcement actions, each of which have contributed to the lull, Tillen said.

A push to resolve things at the end of last year combined with staff turnover at the DOJ may have contributed to the slow start this year, Tillen said. A third factor may be the two trials DOJ has set for June in individual matters, which "I'm sure [are] pulling a lot of resources," he added. Lastly, he sees a "a shift to declinations" that would be consistent with statements by Assistant Attorney General for the Criminal Division Leslie Caldwell earlier this year.

Another factor that will help a company get a declination from the DOJ is a credible prosecutorial alternative, such as when the SEC, or even a separate sovereign state, has enforcement jurisdiction and capability, Tillen said. While a trend toward more declinations may be developing, Tillen's advice to companies has not changed. "This is a risk area. You should be worried about this law and international counterpart laws," he said. When a company discovers a potential violation, the "voluntary disclosure calculus is still one that needs to be discussed [with counsel]. The most recent cases and statements about declinations for cooperation can be instructive in that decision, but companies may want to see how that plays out more before changing that aspect of the calculus."