The below Q&A first appeared in Bloomberg BNA’s White Collar Crime Report on February 5th.
In the Q&A, I respond to questions posed by BNA’s Robert Wilhelm regarding my recent article “The Uncomfortable Truths and Double Standards of Bribery Enforcement .”
Q: In your opinion, does the U.S. government walk-it-like-it-talks-it in terms of FCPA enforcement?
A: No I don’t and hence the reason I wrote the article.
There are a number of instances in which the U.S. government has been an active participant in bribery, had knowledge of and supported private sector bribery, has selectively enforced bribery laws given the company under scrutiny, and has otherwise used overblown and inconsistent rhetoric when speaking of enforcement of bribery laws. And these instances are just based on information in the public domain.
After reading the article, individuals can decide for themselves whether the U.S. government ‘‘practices what it preaches’’ (as stated by the government) when it comes to enforcement of bribery laws and whether the United States is indeed ‘‘in a unique position to spread the gospel of anticorruption’’ (as also stated by the government).
Q: Are the selfish and political reasons for passage of the FCPA in 1970s any different then how the DOJ enforces the act today?
A: Yes, very much so. The primary policy reason Congress enacted the FCPA were the foreign policy implications of corporate payments to foreign government officials such as the Prime Minister of Japan, the President of Gabon, the President of Honduras, and other traditional government officials.
In the modern era of FCPA enforcement, few enforcement actions involve such ‘‘foreign officials.’’ Rather, the alleged ‘‘foreign officials’’ are employed by alleged state-owned or state-controlled entities. For instance, in 2015 FCPA enforcement actions the alleged foreign officials included employees of a real estate development firm, a sugar factory and a cement company. Moreover, a prominent enforcement theory (used in 17 corporate enforcement actions) is that physicians, lab personnel, and even a mid-wife, employed by various foreign healthcare systems are ‘‘foreign officials’’ and thus occupy a status on par with Presidents and Prime Ministers.
Q: Why isn’t there a ‘‘Giffen’’ defense, considering that the U.S. government knew exactly what he was doing, condoned it, yet then one day (different) charges him?
A: Perhaps one day, the real story about the Giffen enforcement action (an action discussed in the article to highlight several uncomfortable truths about U.S. government bribery enforcement) will be known, but I doubt it. It would appear that when the DOJ charged Giffen in 2004 it was unaware that other components of the government were aware of, and condoned of, his activities. A classic case perhaps of the left hand not knowing what the right hand was doing.
Interestingly, the FCPA does indeed state that ‘‘with respect to matters concerning the national security of the United States, no duty or liability . . . shall be imposed upon any person acting in cooperation with the head of any Federal department or agency responsible for such matters if such act in cooperation with such head of a department or agency was done upon the specific, written directive of the head of such department or agency pursuant to Presidential authority to issue such directives.’’ The FCPA further provides as follows. ‘‘Each head of a Federal department or agency of the United States who issues such a directive pursuant to this paragraph shall maintain a complete file of all such directives and shall, on October 1 of each year, transmit a summary of matters covered by such directives in force at any time during the previous year to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.’’
The above provisions, as written would appear to only apply to the FCPA’s books and records and internal controls provisions, and not the anti-bribery provisions, but I believe that this was a drafting error. Regardless, the public surely does not have access to the materials of the Senate Select Committee on Intelligence. Thus, how often a ‘‘Giffen’’-like defense is asserted in practice is largely a black hole.
Q: Does the DOJ use the FCPA as leverage against the large companies to essentially force the company to plead to a lesser charge?
A: Plead? Very few business organizations are required to that as a condition of resolving an FCPA enforcement action. Rather, since 2010 when this ‘‘new era of FCPA enforcement’’ was declared by the DOJ, approximately 85% of corporate FCPA enforcement actions have involved non-prosecution agreements or deferred prosecution agreements.
In the NPA/DPA process, the law and facts largely take a backseat to the leverage the DOJ has against risk averse business organizations. My recent article ‘‘Measuring the Impact of NPAs and DPAs on FCPA Enforcement’ ’ (49 U.C. Davis Law Review 497), tests a hypothesis and concludes that while NPAs and DPAs have resulted in a higher quantity of FCPA enforcement, they have also resulted in a lower quality of FCPA enforcement. In short, there is an open question whether the conduct at issue in several NPAs or DPAs violated the FCPA as passed by Congress and as interpreted by courts.
As a dean of the FCPA bar has stated: ‘‘One reality is the enforcement agencies’ views on issues and enforcement policies, positions on which they are rarely challenged in court. The other is what knowledgeable counsel believe the government could sustain in court, should their interpretations or positions be challenged. The two may not be the same. The operative rules of the game are the agencies’ views unless a company is prepared to go to court or to mount a serious challenge within the agencies.’’
Indeed, in the FCPA’s history the DOJ is 0-2 when put to its ultimate burden of proof by business organizations and has an overall losing record when put to its ultimate burden of proof by individuals. If more business organizations would put the DOJ to its burden of proof in FCPA enforcement actions, it is likely that the modern era of FCPA enforcement would look much different.
What is occurring in the FCPA space and beyond is troubling when you consider that this country otherwise values the rule of law.
Q: Regarding the latest change in DOJ guidelines in charging corporations and requiring disclosure of employee misconduct, will there be more high-profile targets? Will a CEO of a major firm (a business that does less than $5 million in contracts with the federal government) be charged?
A: I do not believe that the Yates Memo will have any meaningful impact on FCPA enforcement. For instance, the DOJ has been talking for years about the importance of individual FCPA enforcement. Yet approximately 70 percent of corporate FCPA enforcement actions lack any related charges against company employees (for reasons addressed above). Regardless of what impact the Yates Memo may have on FCPA enforcement, it is likely to be short-lived as the current crop of DOJ politicians are likely to leave the DOJ in the next 10-12 months with the change in executive administration.
It is troubling that the DOJ Fraud Section is driven by individual policies. For instance, in the past decade there have been numerous DOJ policy memos guiding corporate enforcement (the Holder Memo, the Thompson Memo, the McNulty Memo, the Filip Memo, and now the Yates Memo).
Q: How many enforcement actions would there be if corporations simply decided to not self-disclose?
A: In the FCPA’s modern era, there tend to be between 10-15 core corporate enforcement actions per year. Approximately 50 percent of those actions originate from corporate voluntary disclosures. Several other corporate enforcement actions—including many of the largest enforcement actions from a settlement amount perspective—originate not in U.S. law enforcement activity, but foreign law enforcement activity.
Another question to ask is how many corporate enforcement actions there would be if NPAs and DPAs did not exist? To a certain extent, the answer can be found in FCPA enforcement statistics from 1977 to 2004 (when the DOJ first brought alternative resolution vehicles to the FCPA context).
FCPA risk clearly needs to be on the radar screen of business organizations competing in the global marketplace. However, and even accounting for the factors highlighted above, there is not very much FCPA enforcement considering that every single U.S. business organization (public or private) is subject to the FCPA, approximately 1,000 foreign companies with shares traded on a U.S. exchange are subject to the FCPA, and to the extent a certain jurisdictional nexus is met all companies in the world can be subject to the FCPA.
Q: Why does the DOJ continue with rhetoric that enforcing the FCPA ensures that roads and schools are built, when in reality, the bribery at issue was not for a contract to build said road or school?
A: Because it makes for good politics and nonprofits, NGOs and others who presumably never read FCPA enforcement actions fall for the rhetoric hook, line and sinker. Not only do few FCPA enforcement actions involve the conduct you identify, but also most companies that resolve FCPA enforcement actions are otherwise viewed as selling the best product for the best price and there is rarely an allegation or suggestion of any kind in the enforcement action that the product at issue was compromised.
This of course is not to condone the alleged underlying conduct, only to demonstrate that the U.S. government’s rhetoric about the nature and purpose of its FCPA enforcement program is often hollow.
Q: If U.S. national security is a reason not to enforce the FCPA, why does the DOJ link enforcement actions to national security concerns?
A: Again, it makes for good politics. When the government tries to link FCPA enforcement to national security it sort of puts the enforcement program in an untouchable category. After all, if the goal of FCPA enforcement is to keep Americans safe, how can anyone ask questions about FCPA enforcement? Well, we should ask questions because upon further examination this justification makes little sense given the allegations in a typical enforcement action including the alleged ‘‘foreign officials.’’ Moreover, as highlighted above, approximately 50 percent of corporate enforcement actions are the result of voluntary disclosures.
Notwithstanding the simplicity and hollowness of the national security link, again many are falling for this DOJ rhetoric hook, line and sinker. Here is a recommendation to those inclined to believe the rhetoric: Read the actual enforcement action, the alleged facts including the alleged ‘‘foreign officials,’’ the origins of the enforcement action, and ask yourself is there any credible link to national security in this enforcement action?
Q: The Double Standard Problem: Why is it bribery if a CEO throws a party for a foreign dignitary to ensure access to that official, but the same activity for a U.S. senator is legal?
A: I guess the short answer is because the DOJ is likely to say it is. But as highlighted in the article, this is the double standard problem. The ‘‘domestic bribery statute’’ (18 U.S.C. 201) was enacted prior to the FCPA, has similar elements, and indeed the FCPA was largely modeled on 18 U.S.C. 201.
However, time and time again we see situations in which business interactions with ‘‘foreign officials’’ seem to be subject to different standards than business interactions with U.S. officials? Similarly, we tend to reflexively label a ‘‘foreign official’’ who receives ‘‘things of value’’ from private business interests as corrupt, yet generally turn a blind eye when it happens here at home.
Ought not there be some consistency between enforcement of the FCPA and the domestic bribery statute? Of course there ought to be, but there sure does not seem to be much consistency.
Q: Is there a solution to the double-standard problem?
A: One can look at this two ways. Is enforcement of the ‘‘domestic bribery statute’’ too lax or is enforcement of the FCPA too aggressive?
When it comes to corporate interaction with U.S. government officials, I think enforcement of 18 USC 201 and related laws are too lax. But here, there are complicating factors because the U.S. Supreme Court has held that money is a form of speech and that ingratiation and access are not corruption.
When it comes to corporate interaction with ‘‘foreign officials,’’ I think enforcement of the FCPA in many cases is too aggressive. Indeed, many FCPA enforcement actions involve an expansive category of ‘‘foreign officials’’ and contain allegations about travel and entertainment, and other nominal things of value such as karaoke bars, flowers, cigarettes, and most recently internships. What is the solution? Here again, we can ask two questions in connection with many FCPA enforcement actions. The first is why did the DOJ/SEC assert an aggressive enforcement theory? The second, recognizing that the action likely originated from a corporate voluntary disclosure, is why did the company with the advice of its FCPA counsel disclose the conduct in the first place? Part of that answer requires one to acknowledge that voluntary disclosures are the fuel that fires the multi-billion dollar industry known as FCPA Inc.
Q: Why isn’t it illegal for the U.S. government to lobby on behalf of American businesses, when the same action by a private actor is an FCPA violation? Isn’t the law supposed to be blind?
A: Of course Lady Justice is blind, but the reality is she often lifts up the blindfold to take a peek. The FCPA community often talks about code words and euphemisms to hide bribery. Well it happens here in the United States as well. When the U.S. government uses taxpayer money to influence foreign governments or foreign officials to advantage U.S. business, the government constructs programs around it and gives it names such as foreign aid or foreign military assistance. But when a private actor uses shareholder money to accomplish the same thing, the government tends to call it bribery.
Bribery ought to be bribery pure and simple, and subtle distinctions should not be drawn based on the source of money or influence. Doing so merely creates a distinction without a difference.