With regards to the corporate enforcement policy under the Foreign Corrupt Practices Act ("FCPA"), the United States Department of Justice ("DOJ") is responsible for conducting criminal enforcement actions, while the U.S. Securities and Exchange Commission ("SEC") handles the civil enforcement side of the Act. Both governmental bodies have separate manuals and procedures that provide principles of guidance for managing and resolving corporate misconduct cases.

"When determining whether or not to indict a corporation in a particular case, the DOJ takes into consideration the Principles of Federal Prosecution of Business Organizations ("Principles") regulated under Chapter 9- 28.000 of the U.S. Attorney's Manual. The Principles set forth the alternative resolution methods to indictment, such as entering into non-prosecution or deferred prosecution agreements with corporations. The DOJ evaluates the cooperation of the corporation under scrutiny in each case, provided that the requirements stipulated under the Principles are met. These evaluations are based on a number of factors that influence the DOJ's decision on charging the corporation or agreeing to a reduction in fine, or even deciding on a declination of the case.

These factors include, according to Chapter 9-28.720 of the U.S. Attorney's Manual, but are not limited to, the corporation's (i) timely and voluntary disclosure of the wrongdoing and all relevant facts and specific sources obtained by the corporation's independent investigation, (ii) proactive cooperation where the corporation identifies the evidence and provides the DOJ with such evidence, (iii) timely preservation and disclosure of all relevant documents and all information regarding such documents, and (iv) making available for interviews all current and former officers and employees who possess relevant information even if they are located overseas. Needless to say, the corporation's assistance to the DOJ on the interpretation of its documents and business records also contributes to the DOJ's determination with respect to the corporation's cooperation.

As for the SEC, the guiding principles on whether to open or close an investigation or to charge the corporation are regulated under the SEC's Enforcement Manual. The 2001 Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions ("Seaboard Report"), sets out four broad measures for the evaluation of a corporation's cooperation in order to decide whether to grant it leniency.

These measures, which are not exclusive and which are considered for each case, are as enumerated as follows: "(i) self-policing prior to the discovery of the misconduct, including establishing effective compliance procedures and an appropriate tone at the top, (ii) self- reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins, and consequences of the misconduct, and promptly, completely, and effectively disclosing the misconduct to the public, to regulatory agencies, and to self- regulatory organizations, (iii) remediation, including dismissing or appropriately disciplining wrongdoers, modifying and improving internal controls and procedures to prevent recurrence of the misconduct, and appropriately compensating those adversely affected, and (iv) cooperation with law enforcement authorities, including providing SEC staff with all information relevant to the underlying violations and the company's remedial efforts".

With respect to the Turkish anti-corruption enforcement system, a corporation's anticorruption liability will be solely administrative, as the Turkish Criminal Code recognizes the "principle of personality" and therefore, existing leniency procedures are only applicable and available for natural persons. Additionally, the Turkish legislative system does not recognize civil procedures for crimes regulated under the Turkish Criminal Code.

Taking into account all of the foregoing, while mitigating factors are not available or applicable in the Turkish anti-corruption enforcement system, both the DOJ's and the SEC's measures indicate that the contributing factors to leniency are a corporation's awareness and willingness to demonstrate its cooperative intentions with regard to both preventing and handling the wrongdoings in an expedient and responsible manner during investigations.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2018. A link to the full Legal Insight Quarterly may be found here.

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