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June 24, 2013

Reducing The Legal Limbo of Declination Decisions

What happens when the government decides not to bring a criminal case after it begins an investigation?  Do prosecutors notify the subjects that the case has been dropped?

“Unfortunately, such notice all too often is long delayed and, in some cases, never given at all,” lament George Terwilliger and Matthew Miner in the National Law Journal.

The cost and uncertainty that businesses and individuals are subject to during an investigation can be significant, regardless of whether charges are eventually filed or not.  And current DOJ policy does not require notification when a prosecutor declines to move forward with a case, resulting in a potentially endless period of uncertainty.

Terwilliger and Miner recommend that “the DOJ publish meaningful summaries regarding its declinations decisions each year.”  They point to last year’s FCPA guidance that included six such examples of declination decisions, “significantly improving the regulated community’s understanding of the agencies’ FCPA enforcement expectations.”

Last year, ILR released a white paper (authored by Terwilliger and Miner) seeking clarity on the DOJ’s declinations decisions.  “Improved guidance serves the goal of allowing the Department of Justice to better communicate its expectations of lawful conduct to the individuals and business community it regulates.”

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