Yesterday’s post highlighted how Chuck Duross (the DOJ’s FCPA Unit Chief) became the latest in a long line of DOJ and SEC FCPA enforcement attorneys to leave government service for FCPA Inc. to provide defense and compliance services to business organizations subject to the enforcement climate they helped create. The concerns raised in the prior post were policy issues relevant to the typical career path of DOJ and SEC enforcement attorneys.
This post uses the news of Duross’s departure to highlight additional factual information concerning FCPA enforcement during his tenure. As FCPA Unit Chief, Duross was a public figure and one that publicly welcomed scrutiny and accountability. This post does nothing more than provide the public with additional facts and information concerning FCPA enforcement during Duross’s tenure beyond the press release issued by his future employer Morrison & Foerster (“MoFo”).
In this way, readers can analyze for themselves Duross’s tenure as FCPA Unit Chief – and more broadly – various policy issues relevant to DOJ FCPA enforcement including how the DOJ’s FCPA enforcement program is often publicly portrayed.
During his tenure as FCPA Unit Chief, I had the pleasure to meet Chuck several times. He was helpful to me in obtaining access to certain original source documents and we engaged several times over e-mail and a few times by phone. Moreover, I will forever be grateful to him for participating in an FCPA conference in March 2012 I helped organize at Ohio State University Moritz College of Law (at the time, the most comprehensive FCPA symposium ever held at a law school).
Throughout his tenure as FCPA Unit Chief, Duross appeared uneasy as to the public scrutiny associated with his position and the DOJ’s FCPA enforcement program more broadly. Earlier in his tenure, I chaired the World Bribery & Corruption Compliance Forum in London during which Duross stated (see here for the prior post) that he took the FCPA Unit Chief job with a bit of “trepidation” given that he had big shoes to fill (he made specific praise of prior FCPA Chiefs Peter Clark and Mark Mendelsohn) and given that each new case is followed more closely than the last. More recently, in September 2013, as noted in this prior post, Duross struck a similar theme when he stated that one of his biggest surprises upon becoming FCPA Unit chief was realizing how the unit “operates under a microscope” which highlighted, in his words, the need for his unit “to have its A game” at all times.
To his credit, Duross publicly welcomed scrutiny of the FCPA Unit. For instance, at the September 2013 event, Duross indicated that “we should be held accountable for what we do – good and bad.”
This post does just that as the MoFo press release announcing the hiring of Duross paints an incomplete picture of FCPA enforcement during his tenure as FCPA Unit Chief.
This post does not suggest or imply that everything that occured in connection with DOJ FCPA enforcement since April 2010 was the direct result of Duross’s decisions or conduct.
Yet, the same could be said regarding the FCPA statistics touted in the MoFo release. (“Under his leadership, the FCPA Unit resolved more than 40 corporate cases, which include about two-thirds of the top 25 biggest corporate resolutions ever. Those matters resulted in approximately $1.9 billion in monetary penalties and the conviction of more than two dozen business executives and money launderers.”) Many of these enforcement actions, including several of the largest ones from a settlement amount perspective, were on the DOJ’s docket long before Duross assumed leadership of the FCPA Unit in April 2010.
Perhaps the most notable event of Duross’s tenure as FCPA Unit was publication of the FCPA Guidance in November 2012.
However, far from a pro-active DOJ effort to “make FCPA enforcement more transparent and compliance with the statute more understandable to the business community” (as stated in the MoFo release), the timing of the Guidance appeared to be a DOJ attempt to forestall introduction of an actual FCPA reform bill.
The following chronology of events is relevant as highlighted in my article “Grading the FCPA Guidance.” After the November 2010 Senate FCPA hearing, FCPA reform gained steam. After the Senate hearing, Senator Amy Klobuchar (D-Minn.) asked the DOJ, ‘‘do you believe companies could comply with more certainty with the FCPA if they were provided with more generally applicable guidance from the Department in regards to situations covered by the FCPA that are not clear cut or fall into gray areas?’’ The DOJ response was that it “believes it provides clear guidance with respect to FCPA enforcement through a variety of means,’’ and it then listed the same general categories of information the OECD identified in 2002 as being deficient.” FCPA reform gained further steam as a result of the June 2011 House FCPA hearing which evidenced bipartisan support for certain aspects of FCPA reform. Against this backdrop, and only then, did Assistant Attorney General Lanny Breuer announce in November 2011 that the DOJ intended to issue FCPA Guidance in 2012. Those on Capital Hill who were inclined to introduce an FCPA reform bill said they would await DOJ’s FCPA guidance before introducing such a bill. It took a year for the DOJ and SEC to release the FCPA Guidance and its release was shortly after the November presidential election and during a lame duck Congress.
Regardless of the motivations of the DOJ (and SEC) in releasing the FCPA Guidance when they did, the related issue is the Guidance itself.
In the MoFo release, Paul Friedman, co-chair of the firm’s FCPA & Anti-Corruption Practice, calls the Guidance “groundbreaking” and “authoritative” and states that it “has proven invaluable to global companies and practitioners.” As noted in this prior post (summarizing nearly 50 law firm and practitioner views on the Guidance), the Guidance has been perceived much differently than portrayed in the MoFo release. For instance, Steven Tyrrell (the former chief of the DOJ fraud section) called the Guidance “more of a scrapbook of past DOJ and SEC successes than a guide book for companies who care about playing by the rules.”
Perhaps more to the point, Duross’s future law firm had a different take as to the Guidance it termed “groundbreaking” in its recent release. Indeed, MoFo previously called the Guidance “not groundbreaking.” In this November 2012 Client Alert, Friedman and others state, in pertinent part:
“the guidance is not a panacea for the difficult issues that global companies navigate on a daily basis …”
“the guidance does not deliver any of the fundamental reform that the business community has been seeking, likely setting the stage for further attempts to secure statutory reform from Congress”
“[as to “foreign official” issues discussed in the Guidance] it provides no meaningful relief from the fact-specific ambiguities presented in real life.”
“[as to the standard for corporate liability v. individual liability in the Guidance] what the regulators see as the difference between “willful” and “corrupt intent” goes unsaid.”
“The [FCPA Guidance] is not groundbreaking. There is no sign of the regulators retreating from their expansive views of liability under the FCPA.”
Guidance aside, Duross’s departure from the DOJ once again raises the broader point – how does the DOJ actually define success in its FCPA enforcement program? (For instance, see recent statements here and here from Acting Assistant Attorney General Mythili Raman “our stellar FCPA unit continues to go gangbusters” and “our recent string of successful prosecutions of corporate executives is worth highlighting.”)
While the DOJ has had “success” in exercising its leverage and securing large FCPA settlements against risk-averse corporations through resolution vehicles not subjected to any meaningful judicial scrutiny, when put to its burdens of proof in the context of an adversarial system, the DOJ has had substantially less success. In a legal system founded on the rule of law, this later form of success is more meaningful than the former.
For instance, as noted in this recent post, SEC Chairman Mary Jo White recently stated that trials are the “crown jewel of our system of justice” as they “create public accountability for both defendants and the government through the public airing of charges and evidence.” As White stated, “trials allow for more thoughtful and nuanced interpretations of the law in a way that settlements and summary judgments cannot.”
To his credit, Duross recognized the importance of trials in terms of the FCPA Unit’s overall legitimacy and credibility. As noted in this September 2010 post, Duross stated that the “ability to try lengthy and complex trials” is critical to the FCPA Unit’s success and that the Unit must continue to be willing to try cases and be put to its burden.
Duross’s FCPA Unit was put to its burden several times during his tenure and the results were often DOJ failures.
Again, this post does not suggest or imply that everything that occured with DOJ FCPA enforcement since April 2010 was the direct result of Duross’s decisions or conduct.
Nevertheless, it is a fact that the following things occurred while Duross headed the DOJ’s FCPA Unit.
The DOJ’s Africa Sting cases ended in February 2012 with Judge Richard Leon granting the DOJ’s motion for dismissal and stating as follows (see here for the prior post).
“This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement. Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case. Funny, isn’t it, what sells newspapers? The good news, however, is that for these defendants, agents, prosecutors, defense counsel and the court we can get on with our professional and personal lives without the constant strain and burden of three to four more eight-week trials hanging over our heads. I for one hope this very long, and I’m sure very expensive, ordeal will be a true learning experience for both the department and the FBI as they regroup to investigate and prosecute FCPA cases against individuals in the future. Two years ago, at the very outset of this case, I expressed more than my fair share of concerns on the record regarding the way this case has been charged and was being prosecuted. Later, during the two trials that I presided over, I specifically commented again on the record regarding the government’s very, very aggressive conspiracy theory that was pushing its already generous elasticity to its outer limits. Of course, in the second trial that elastic snapped in the absence of the necessary evidence to sustain it. In addition, in that same trial, I expressed on a number of occasions my concerns regarding the way this case had been investigated and was conducted especially vis-a-vis the handling of Mr. Bistrong. I even had an occasion, sadly, to chastise the government in a situation where the government’s handling of the discovery process constituted sharp practices that have no place in a federal courtroom. Notwithstanding all of this water over the dam, and there has been a lot of water, I’m happy to see and I applaud the department for having the wisdom and courage of its convictions to face up to the limitations of its case as revealed in the past 26 weeks of trial and the courage to do the right thing under the circumstances. Having served at the higher levels of the department, I know that that was not an easy decision. They never are, when so much has been invested, and the agents and the prosecutors are so convinced of the righteousness of their position. I for one however am confident this will be in the end a positive, if not painful, lesson that results in better prosecutions of individuals in the future under the FCPA. As for the defendants, I hope the healing process is a swift one and that they get back to their normal lives in the very near future. Finally, I would be remiss if I did not comment on the tireless and spirited effort by the defense counsel from all over the country who came here to try these very lengthy and complicated cases under difficult circumstances and some even pro bono. Their hard work and effective advocacy are a testament to how strong our criminal defense bar is nationwide. And so without further adieu I grant the government’s motion to dismiss. The defendants are excused.”
In a recent interview, Duross stated as follows regarding the Africa Sting case – “I still believe it was a better case than most people thought.” This is not how the jury foreman in one of the Africa Sting trials saw it. In this guest post, the jury foreman stated that ‘‘a number of jurors were troubled by the nature of the FBI sting operation’’ and stated that the underlying view of the jury was that ‘‘the defendants had acted in good faith and the FBI/DOJ in bad faith.”
The jury foreman concluded the FCPA Professor post as follows:
“The government has the option to try [the defendants on which the jury hung] again. As a taxpayer, I sincerely hope they will instead dismiss the charges. The evidence simply does not exist, even if they get their witnesses to behave better under cross, to convict. This is a case that makes one wish that a supermajority was sufficient to acquit. Prolonging this prosecution is a waste of government resources. At some point in the deliberations, I described this sting and prosecution as a quarterback sneak. Although I came to regret that analogy for the frequency with which it was recalled in the jury room, I think it apt. The FBI and DOJ designed a play to get the ball just across the goal line. Unfortunately, in the ensuing pileup, no camera angle shows the ball with clarity and it is anyone’s guess as to whether they scored.”
The DOJ’s enforcement action against Lindsey Manufacturing and its executives Keith Lindsey and Steve Lee ended in December 2011 with Judge Howard Matz dismissing the indictment after finding numerous instances of prosecutorial misconduct and stating as follows (see here for the prior post).
“[The instances of misconduct were so varied and occurred over such a long time] that they add up to an unusual and extreme picture of a prosecution gone badly awry. […] The Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s order, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”
“Dr. Lindsey and Mr. Lee were put through a severe ordeal. Charges were filed against them as a result of a sloppy, incomplete and notably over-zealous investigation, an investigation that was so flawed that the Government’s lawyers tried to prevent inquiry into it. In some instances motives, statements and conduct were attributed to them that were wholly unfounded or were obtained unlawfully . . . [. . .] The financial costs of the investigation and trial were immense, but the emotional drubbing [Lindsey and Lee] absorbed was even worse. As for [Lindsey Manufacturing], the very survival of that small, once highly respected enterprise has been placed in jeopardy.”
The DOJ’s enforcement action against John O’Shea ended in January 2012 when Judge Lynn Hughes granted O’Shea’s motion for acquittal after the DOJ’s case, a case which Duross personally tried (see here). Judge Hughes stated as follows.
“The problem here is that the principal witness against Mr. O’Shea … knows almost nothing.”
“The government should have been prepared before they brought the charges to the Grand Jury. […] You shouldn’t indict people on stuff you can’t prove.”
As FCPA Unit Chief, Duross was a public figure and one that publicly welcomed scrutiny and accountability. This post provides the public with additional facts and information concerning FCPA enforcement during Duross’s tenure as FCPA Unit Chief so that readers can analyze for themselves Duross’s tenure, as well as more broadly, various policy issues relevant to DOJ FCPA enforcement.
In a recent interview, Duross stated as follows concerning his tenure as FCPA Unit Chief – “I think I had a great run.”
You can decide for yourself.