Anti-Corruption and Compliance Partners Discuss DOJ’s Safe Harbor Policy in Anti-Corruption Report

The Department of Justice recently revealed its Safe Harbor Policy for voluntary self-disclosures made in connection with mergers and acquisitions. In an article for Anti-Corruption Report, litigation & enforcement partner María González Calvet discusses what the new policy means for companies and their compliance advisors.

“The timeline presumes the company will have thoroughly rooted out the conduct it discloses and, during the course of the transaction and post-close period, developed a robust remediation plan,” María noted. “Should diligence uncover potential misconduct, companies will need to act swiftly to benefit from the safe harbor protections. Though declinations may be presumed, they are not guaranteed.”

When discussing the practical application of the new policy, María said, “Other agencies, in the U.S. or abroad, may turn their gaze on companies as a result. Cooperation with any resulting investigations may bring forth risk of additional scrutiny or broadened government enforcement.”

The article points out the Safe Harbor Policy will not affect recidivist analysis. “The Safe Harbor Policy is designed to incentivize and reward the acquiring entity for rooting out risks before a deal closes, and for making an immediate and ongoing commitment to remediate, mitigate risk and prevent repeat misconduct,” María said. “As described, the Safe Harbor Policy does not mean the Department will forego pursuing charges against individuals involved in historical misconduct,” she cautioned. “Nor will it leverage the disclosed information in order to pursue potentially criminal conduct by others.”

“One goal of the Safe Harbor Policy is to ensure that due diligence is more than just a box-checking exercise,” said María. As to whether Monaco’s speech should be hailed for mentioning that “compliance must have a prominent seat at the deal table,” Gonzalez Calvet pointed out that the DOJ has long established this as an expectation.