The program is designed to provide additional opportunities for leniency for companies found to have engaged in misconduct in violation of the FCPA, depending on their actions in such a situation.

The DOJ began using such a program back in 2016 as a pilot project, with 7 non-prosecution agreements entered into during the pilot program period. The adoption of the updated program moved it from a pilot to a permanent program, and the program was incorporated into the United States Attorneys' Manual ( USAM, 9-47.120).

The program provides for the possibility of leniency for an organization if the following conditions are met:

• the organization has made a voluntary self-disclosure of the observed violations to the competent authorities (voluntary self-disclosure);
• the organization has fully cooperated with the investigation (full cooperation);
• the organization has ensured timely and appropriate remediation of the causes and consequences of the violations (timely and appropriate remediation).

In this case, it is agreed (in case of a pre-trial agreement with law enforcers) or recommended to the court (in case of court proceedings) to reduce the amount of fine imposed on the company by 50% of the lower limit of the range of fines (except for cases of criminal recidivist), and there is no need for independent monitoring, if the organization has an effective compliance program in place at the time of the decision. It is noteworthy that in the pilot version of the program, the company is provided with an effective compliance program.

In any case, the company must ensure the return of property obtained as a result of wrongful transactions (disgorgement), return of assets (forfeiture) and (or) compensation of losses (restitution), which may be stipulated by parallel agreements of the organization with other competent authorities (for example, with the Securities and Exchange Commission ( SEC)).

At the same time, compliance with all conditions provides the organization with a presumption of non-prosecution (declination) in the absence of aggravating circumstances related to the seriousness or nature of the offense. Aggravating circumstances may include, but are not limited to, the involvement of senior management in the wrongdoing, significant profits made by the company as a result of the wrongdoing, the prevalence of wrongdoing within the company, repeat offenses, etc. In the pilot version of the program, the organization is required to comply with the last two conditions.

If only the last two conditions of the program (cooperation with the investigation and correction of violations) are met, the company can count on partial mitigation of liability measures, namely, approval or recommendation to the court to reduce the amount of fine up to 25% of the lower limit of the range of fines.

The main part of the program is devoted to disclosing the content of the above elements that allow companies to obtain leniency.

I. Thus, self-reported voluntary disclosure of the offense means:

• Voluntary disclosure pursuant to section 8C2.5(g)(1) of the Federal Sentencing Guidelines (United States Sentencing Guidelines), i.e., prior to an imminent threat of disclosure or the initiation of a government investigation;
• Disclosure to the U.S. DOJ as soon as reasonably practicable after discovery of the misconduct;
• disclosure of all facts related to the offense and known to the company, including relevant information about all individuals involved.

The pilot program also included a provision that disclosures that a company is required to make by law, agreement or contract do not constitute voluntary disclosures for the purposes of the program. The updated program does not include such clauses.

II: The basic principles for evaluating full cooperation with an investigation are discussed in section 9-28.700 of the Prosecutor's Guide (Principles of Federal Prosecution Of Business Organizations). In addition to these, the program includes the following criteria, the scope, quantity, quality, and timing of which are evaluated on a case-by-case basis:

• Timely disclosure of all facts relevant to the offense, including: all relevant facts identified during the company's independent internal investigation; correlation of identified facts to specific sources, if not inconsistent with attorney-client privilege principles, preferred over mere recitation of facts; timely updating of the results of the company's internal investigation, including, but not limited to, disclosure of additional information as it becomes available; all facts related to participation in criminal activity
• proactive cooperation, rather than undertaken as a response to events that have already occurred, i.e., timely disclosure by the company of facts necessary in the interest of the investigation, even in the absence of a specific requirement to do so, and, when the company realizes or should realize opportunities for DOJ to obtain necessary evidence not in the company's possession that DOJ would not otherwise be able to obtain, identification of such opportunities;
• timely preservation, collection, and disclosure of relevant documents and information about the terms and conditions of their receipt, including (a) disclosure of foreign documents, where they were discovered and the persons who discovered such documents, (b) assisting in the production of documents by counterparties, and (c) where necessary and appropriate, translating relevant documents into foreign languages;
• (as appropriate) resolving conflicts in witness interviews and other investigative activities that the company intends to undertake as part of its internal investigation with activities that DOJ intends to undertake as part of its investigation. The comments to the policy clarify that DOJ may request a suspension of interviews with employees or other persons conducted in the course of the company's internal investigation. Such a suspension, however, will be brief and related to a legitimate investigative purpose (e.g., if it is to
• (if necessary) ensuring that those company executives and employees who have relevant information, including, if possible, those located overseas and former executives and employees, participate in interviews with DOJ, and, if possible, facilitating the participation of counterparty witnesses in interviews.

If a company asserts that fuller cooperation is not possible due to its financial condition, the burden of proof for such an assertion rests with that organization.

III. timely and adequate remediation of violations by the entity for purposes of the program entails:

• Demonstrating a thorough analysis of the underlying causes of wrongdoing (causal analysis) and, if necessary, addressing those underlying causes. Experts note that the purpose of such analysis is more in-depth than that of a risk assessment: in particular, staff will need to understand how wrongdoers were able to implement a criminal scheme to circumvent existing controls;
• Implementing an effective compliance and ethics program, the criteria for which will be updated periodically and may vary depending on the size and resources of the organization, while including:

1. The compliance culture of the organization, including employee awareness of zero tolerance for misconduct;
2. the resources brought in to implement the compliance program;
3. the quality and experience of compliance officers, including understanding and detecting transactions and situations that may pose a potential risk;
4. the existence of authority and autonomy of the units/officials responsible for compliance, as well as the availability of expert reports to the organization's governing body;
5. the effectiveness of the company's risk assessment activities and how the organization's compliance program can be improved based on the results of the risk assessment;
6. remuneration and incentives for compliance officers, taking into account their role, responsibilities, performance and other factors:
7. Conducting an audit of the compliance program for its effectiveness;
8. structuring a reporting system for all employees involved in compliance, including those engaged on a contractual basis;

• Appropriate disciplinary measures, including accountability for both direct involvement in misconduct and failure to implement appropriate controls, as well as accountability of departments/persons overseeing the line of business in which the violation occurred;
• proper preservation of business records and prohibition of their improper destruction or alteration, including prohibition of the use by employees of software in which business records and correspondence are created but cannot be properly stored. Experts note, however, that controlling the use of such software can be quite a challenge, as virtually everyone nowadays has these types of applications (Telegram, Snapchat, Wickr, etc.) installed on their smartphones;
• any additional steps that demonstrate an understanding of the seriousness of the misconduct committed, acceptance of responsibility for it, and implementation of measures aimed at reducing the risk of recurrence of misconduct, including measures to identify future risks.

At the same time, it should be noted that the adopted program, like other DOJ guidance, is non-binding. As Deputy Attorney General Rosenstein (Rosenstein) pointed out in a statement, "The new policy, like all DOJ internal operating policies, does not create any private rights and cannot be enforced in court."