Matthew Miner is returning to Morgan Lewis in Washington.
During his tenure as Deputy Assistant Attorney General at the Justice Department, Miner played a prominent role in the development of a range of policy initiatives, including policy reforms addressing compliance program evaluation, how the Department assesses a company’s inability to pay a fine or penalty, the Criminal Division’s approach to the selection of monitors, and various reforms to the Justice Manual’s Principles of Prosecution of Business Organizations, the Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy, and provisions regarding cooperation and individual accountability.
In a speech in September 2019, Miner laid out his view of corporate criminal defense attorneys and prosecutors as partners, not adversaries – and that if the friendly relations continue, corporations can expect more declinations – even when there are aggravating factors like senior executive involvement.
“The goal of the FCPA Corporate Enforcement Policy is to encourage voluntary self-disclosures by making clear the benefits for companies that voluntarily self-disclose, fully cooperate and remediate, most significantly a presumption of a declination,” Miner said. “It also spells out the Department’s expectations for companies to satisfy the standards in the policy.”
“If you believe, as I do, that corporations are rational actors that react to clearly-defined economic stimuli, then it follows that the Department’s more concrete guidance will have a positive effect.”
“While it has been in place for less than a year, we’ve already had three FCPA declinations thus far under the policy — the declinations involving Dun & Bradstreet Corporation, the Insurance Corporation of Barbados Limited, or ICBL, and Guralp Systems Limited.”
“The declinations involving ICBL and Guralp are particularly noteworthy as they represent instances in which senior executives were implicated in connection with the improper conduct, and yet we nevertheless declined both cases under the Corporate Enforcement Policy.”
“ICBL and Guralp make clear that although aggravating circumstances can overcome the presumption for a declination, such circumstances by no means preclude a declination.”
“Companies making the decision of whether to voluntarily disclose should consider these cases, and recognize the significant benefits they can achieve through good corporate behavior under the policy.”
“ICBL and Guralp also demonstrate our clear commitment to holding individuals accountable for transnational corruption. Both cases involved the prosecution of culpable individuals.”
“Businesses thrive in a stable legal environment. A stable legal environment exists when laws are enforced consistently and fairly. And when business thrives, it benefits all of us.”
“Our role is not to impose penalties that disproportionately punish innocent employees, shareholders, customers, and other stakeholders – especially for companies that have taken steps to rectify and prevent misconduct from occurring.”
“As counsel, advisors and compliance professionals, I know that many of you in attendance today are on the front lines of detecting and preventing misconduct.”
“In that role, I hope that you will view those of us at the Department of Justice as partners, not adversaries.”
“I hope when you see something, you will decide to come forward and say something.”
“As I have said before and firmly believe, when business and industry work with the Department, rather than against it, our public institutions and our country are stronger for it.”