US DOJ revises FCPA policy related to the use of messaging services

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The policy amendments acknowledge the reality that business communications occur over these [messaging] platforms – including as part of employees’ personal communications

The US Department of Justice (DOJ), on 12 March, modified the FCPA Corporate Enforcement Policy. This Policy credits corporations that voluntarily self-disclose, provide full cooperation, and demonstrate timely and appropriate remediation in FCPA matters with a presumption of declination absent aggravating factors. A key change is to now allow the use of “ephemeral messaging platforms”, such as WeChat and WhatsApp, for business communications as long as controls are put in place to ensure appropriate retention of business records. These “controls” however require careful consideration.

Obligations to control or retain WeChat and WhatsApp business communications. In November 2017, the DOJ adopted the Policy to provide corporations with further certainty around the benefits of cooperating with the DOJ and how to obtain a declination. Many observed that the original language in the Policy indicated that, to effectively remediate, business records could not be stored on messaging platforms because such platforms could not effectively retain business records. This was practically difficult as messaging apps are routinely used in the modern business context. The Policy amendments acknowledge the reality that business communications occur over these platforms – including as part of employees’ personal communications – and advise corporations to implement “appropriate guidance and controls” to ensure that the corporation retains these business records or communications as part of its document retention policies or legal obligations.

This development continues the trend seen in the People’s Republic of China, which issued new rules to clarify procedures for collection of electronic data in criminal cases that took effect in February 2019.

In addition to the guidance on the adoption of policies and controls around business communications on messaging apps, the amended policy reflects two additional clarifications:

  1. In the M&A context, the policy reflects the DOJ’s position that there will be a presumption of a declination where a company undertakes an M&A transaction where misconduct is uncovered through thorough and timely due diligence or post-acquisition compliance integration efforts; and
  2. Further guidance on “de-confliction” when the DOJ may request a deferral of investigative steps by a company for a limited period
    of time.