The United States framework provides for a series of documents, including guidelines and policy instruments, establishing, and raising awareness of corporate sanction mitigation factors. These documents include:
- United States Sentencing Commission’s Organizational Sentencing Guidelines. Published annually since 1991, these are the first formal guidelines for corporate penalty mitigation. Under the guidelines, companies can receive sentencing reductions for establishing an effective compliance and ethics programme as well as for self-reporting, cooperation, or acceptance of responsibility. Although technically limited to sentencing in criminal cases, the guidelines have much broader practical importance. Federal prosecutors, for instance, consider these guidelines among other policy and legal instruments when deciding whether to prosecute a company for violations as well as when determining appropriate penalties to seek or impose through non- trial resolutions.
- The Foreign Corrupt Practices Act (FCPA) Resource Guide. In November 2012, the US Department of Justice (DOJ) and the Securities Exchange Commission (SEC) released the first version FCPA Resource Guide. The Guide is a detailed compilation of information about the FCPA, its provisions and enforcement. It addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions; the definition of a “foreign official”; what constitute proper or improper gifts, travel and entertainment expenses; the nature of facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance programme; and the different types of civil and criminal resolutions available in the FCPA context. In July 2020, the DOJ and SEC issued a second version of the Guide to reflect developments since the first edition was adopted. In March 2023, they also issued a Spanish-language version.
- The DOJ Guidance Evaluation of Corporate Compliance Programs. First released in February 2017, this Guidance was most recently updated in March 2023. It aims to assist prosecutors in determining whether and to what extent a company compliance programme was effective at the time of the offence. This document outlines the framework by which DOJ Criminal Division prosecutors evaluate corporate compliance programmes when determining the appropriate form of resolution. If a prosecution or enforcement action is appropriate, it also informs decisions impacting the level of monetary sanctions or the extent of compliance obligations that should be sought or imposed.
- The DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy. Revised and updated in January 2023, this policy establishes a presumption of declination companies that satisfy three factors: voluntary self-disclosure, full cooperation in the investigation of the wrongdoing, and timely and appropriate remediation to prevent future wrongdoing. It also defines what each of these factors requires to qualify. If a resolution is nonetheless warranted even though the company satisfied all three factors, it can be eligible for a 50–75% reduction in the fine. A company that does not self-report will, at most, be eligible for a 50% reduction if it cooperates and remediates.
Source: OECD Working Group on Bribery Phase 4 evaluation report of the United States, https://www.oecd.org/en/topics/anti-corruption-and-integrity.html, U.S. Department of Justice Criminal Division, Evaluation of Corporate Compliance Programs (Updated March 2023), https://www.justice.gov/criminal/criminal-fraud/page/file/937501/dl?inline=; U.S. Department of Justice Criminal Division, 9-47.120 – Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy, https://www.justice.gov/criminal/criminal-fraud/file/1562831/dl?inline=.
