United States: FCPA Corporate Enforcement Policy Update: DOJ Introduces New Compliance Requirements For Companies Using Instant Messaging Platforms

On March 12, 2019, the United States Department of Justice (the "DOJ") revised key provisions of the FCPA Corporate Enforcement Policy (the "Policy"). The revisions formalize several of the DOJ's remarks and announcements since the Policy was adopted, and relaxed and clarified several criteria for self-disclosure, cooperation, and remediation. Most notably, the revisions soften the Policy's original restriction against use of instant and ephemeral messaging services and platforms for business communications, instead adding a focus on "appropriate guidance and controls" to ensure retention of business records.

Key Policy Revisions

The Policy, first announced by Deputy Attorney General Rod Rosenstein in November 2017, updated and formalized the DOJ's criteria for evaluating and rewarding corporate cooperation and self-disclosure in FCPA cases.1 The Policy provided a "presumption" that the DOJ will decline to prosecute a company if the company satisfies the standards set forth for voluntary self-disclosure, full cooperation, and timely and appropriate remediation (or a 50% reduction off the sentencing guidelines where the criteria for a declination are met, but where aggravating circumstances are present).2 The Policy set forth guidelines for fulfilling the self-disclosure, cooperation, and remediation factors, which is intended to encourage companies to take active steps to self-report misconduct and address compliance shortcomings.

The March 2019 revisions to the Policy further clarify the DOJ's expectations for securing credit. The revisions incorporated two remarks made by DOJ officials since the Policy was initially adopted, while also adding two new changes to the Policy's guidelines:

  1. Disclosure Regarding Responsible Individuals: As Rosenstein originally remarked in a November 2018 speech, the DOJ softened its prior demands for companies to provide all relevant facts on individuals "involved" in FCPA violations. Instead, the Policy now allows full cooperation credit for companies who disclose relevant facts about individuals "substantially involved in or responsible for" the violations.3
  2. Credit in Mergers and Acquisitions Context: Also foreshadowed in a July 2018 speech given by the DOJ Criminal Division Deputy Assistant Attorney General Matt Miner, the Policy now clearly provides cooperation credit in the M&A context—including a declination to prosecute for post-acquisition misconduct—if an acquirer conducts appropriate due diligence and promptly self-discloses any uncovered misconduct to the DOJ and otherwise complies with the Policy on cooperation and remediation.4
  3. Additional De-confliction Guidance: As a new change, the DOJ added a footnote to the Policy to emphasize that, while it may make requests for de-confliction5 purposes, it "will not take any steps to affirmatively direct a company's internal investigation efforts."6
  4. Refocusing on Business Records and Communications: Also a new and notable change, companies are required to retain business records, prohibit "the improper destruction or deletion of business records," and implement "appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company's ability to appropriately retain business records or communications or otherwise comply with the company's document retention policies or legal obligations."7

Revision to the Business Records and Communication Requirement

The revision to the business records and communication requirement is particularly notable. The original Policy required that companies prohibit use of "software that generates but does not appropriately retain business records or communications" to secure full cooperation credit. Many interpreted this prohibition to mean banning use of messaging apps, like WhatsApp, WeChat, Line, KakaoTalk, and Skype, which were ephemeral and/or outside the company's communications records ecosystem. In practice, because these messaging apps constitute such a prevalent and indispensable component of business, this requirement would have effectively prevented many companies from earning full cooperation credit under the Policy. However, there is no indication that the DOJ enforced this requirement. Since the Policy was adopted in 2017, no public resolution has cited a company's prohibition on software as a remediation factor considered by the DOJ.

The revised Policy instead focuses on "improper destruction or deletion" of records and introducing compliance requirements on "appropriate guidance and controls" over such communications. The change can be significant for companies doing business in markets where such communications apps are ubiquitous and routinely used between business contacts. In China, for instance, use of WeChat for business communications is practically universal; the same is true for KakaoTalk in South Korea and Line in Japan. The DOJ's revised requirements signal the need for companies to consider their approach towards communications recordkeeping and retention.

What Impact Will This Have?

Overall, the Policy revisions reflect the DOJ's revisiting the Policy requirements with a lens towards practicality. The revisions also lend more room for DOJ attorneys to evaluate each case's particular facts and circumstances in making a decision towards declination. Regardless of what the specific changes entail, they signal the DOJ's continued interest in encouraging companies to self-disclose, cooperate, and remediate.

In response to the revisions, companies may want to consider the following:

  • With the revisions to the business records and communication requirements, it will be important to establish appropriate policies, IT systems, and controls around communication devices, tools, and applications. A key challenge will be striking the right balance between fulfilling the new Policy requirements with the practicalities of how business communications are carried out in different geographic markets.
  • While the DOJ has emphasized it will not direct companies on how to conduct internal investigations, appropriate communication and coordination with the DOJ is still important to ensure de-confliction issues are appropriately addressed in the course of the internal investigation.
  • Following these formal revisions to the Policy, it will be revealing to see how these issues are reflected in newly published DOJ corporate settlements (both FCPA and other corporate resolutions).
  • Irrespective of the revised language, the DOJ has not changed its continued focus on individual culpability. Companies considering self-disclosure will still need to think carefully about taking necessary steps to investigate, identify, and self-report evidence implicating individuals substantially involved in the misconduct.


1 However, the DOJ has stated that the principles of the Policy will also serve as guidance in the prosecution of non-FCPA cases.

2 Press Release, DOJ, Remarks of Deputy Attorney General Rod Rosenstein at 34th International Conference on the Foreign Corrupt Practices Act (Nov. 29, 2017), https://www.justice.gov/opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-34th-international-conference-foreign.

3 DOJ, Justice Manual, 9-47.120, FCPA Corporate Enforcement Policy (2019) (emphasis added).

4 Id.

5 The DOJ may request that a company defer investigative steps like employee and third-party interviews for a limited period of time to avoid a potential conflict with the DOJ's investigation. The Policy refers to this as "de-confliction."

6 Justice Manual, supra note 3.

7 Justice Manual, supra note 3.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions