On April 5, 2016, the Fraud Section of the Criminal Division of the Department of Justice (“DOJ”) released an Enforcement Plan and Guidance (the “Plan”) regarding the Foreign Corrupt Practices Act (“FCPA”). The Plan contains three components designed to enhance the DOJ’s ability to detect and prosecute violations of the FCPA: (1) a substantial increase in law enforcement resources; (2) increased coordination with foreign jurisdictions; and (3) implementation of a pilot program (the “Pilot Program”) offering substantial cooperation credit to companies that meet certain specified standards for “(1) voluntary self-disclosure of criminality, (2) full cooperation, and (3) remediation.”
One of the enumerated requirements for companies to achieve “full cooperation” (and thus earn maximum cooperation credit) under the Pilot Program is that companies must effectuate “[d]islcosure of overseas documents, the location in which such documents were found, and who found the documents.” This requirement comes with an exception for situations in which “such disclosure is impossible due to foreign law, including but not limited to foreign data privacy laws.” The requirement and exception are followed by a note stating that:
Where a company claims that disclosure is prohibited, the burden is on the company to establish the prohibition. Moreover, a company should work diligently to identify all available legal bases to provide such documents.
Thus, companies seeking to avail themselves of the cooperation credit offered under the Pilot Program may find themselves trying to strike a delicate balance between compliance with foreign data privacy laws, such as those in the European Union that restrict the transfer of personal data, and compliance with the DOJ’s “full cooperation” requirement.