One can predict with a high degree of certainty what high-ranking DOJ officials will say about the Foreign Corrupt Practices Act even before hearing or reading the speech (and I say that based on highlighting on these pages over 100 FCPA enforcement agency speeches since 2009).
The script goes like this: the DOJ places a high-priority on FCPA enforcement as well as transparent enforcement; the DOJ is committed not just to corporate enforcement, but holding individuals accountable as well; and companies benefit from voluntary disclosure and cooperation.
Just like DOJ Deputy Assistant Attorney General Trevor McFadden did in February (see this prior post) and did so to varying degrees again twice last week (see here and here), yesterday Attorney General Jeff Sessions also delivered the DOJ’s FCPA script.
In a speech at the Ethics and Compliance Initiative Annual Conference in Washington, D.C., Session stated in pertinent part:
“We will also enforce … laws so we can protect honest businesses. Companies that obey the law and do the right thing should not be at a disadvantage simply because their competitors choose to break the rules.
One area where this is critical is enforcement of the Foreign Corrupt Practices Act (FCPA). Congress enacted this law 40 years ago, when some companies considered it a routine expense to bribe foreign officials in order to gain business advantages abroad.
This type of corruption harms free competition, distorts prices, and often leads to substandard products and services coming into this country. It also increases the cost of doing business, and hurts honest companies that don’t pay these bribes.
Our department wants to create an even playing field for law-abiding companies. We will continue to strongly enforce the FCPA and other anti-corruption laws. Companies should succeed because they provide superior products and services, not because they have paid off the right people.
Let me conclude by briefly making two final points about our approach to this work.
The Department of Justice will continue to emphasize the importance of holding individuals accountable for corporate misconduct. It is not merely companies, but specific individuals, who break the law. We will work closely with our law enforcement partners, both here and abroad, to bring these persons to justice.
Also, when we make charging decisions, we will continue to take into account whether companies have good compliance programs; whether they cooperate and self-disclose their wrongdoing; and whether they take suitable steps to remediate problems.
For years, the Department of Justice has directed our prosecutors to consider these factors when making charging decisions. The U.S. Sentencing Guidelines also provide for substantial penalty reductions for companies that self-disclose, cooperate and accept responsibility for their misconduct. These principles will still guide our prosecutorial discretion determinations.
Our economy, and indeed, our whole system of self-government, depends on people believing that those who choose to disregard the law will be caught and punished. This is ultimately the responsibility of the Justice Department.”
By linking FCPA enforcement to substandard products and services (“coming into this country” is sort of interesting) Sessions is borrowing from the FCPA script of former Assistant Attorney General Lanny Breuer who frequently linked FCPA enforcement to such classical notions of bribery as roads not being built, schools lying in ruins, and basic public services going unprovided.
The simple fact is that the vast majority of business organizations that resolve FCPA enforcement actions are otherwise viewed as selling the best products or services for the best price, and indeed many FCPA violators were at the time of the FCPA conduct and still remain U.S. government contractors.
Sessions’s statement about individual accountability in the FCPA context is once again hollow rhetoric as I’ve highlighted more times that I can count when DOJ officials make similar assertions.
Here are the fact about DOJ individual FCPA prosecutions.
The last 17 DOJ corporate FCPA enforcement (4 in 2017 thus far and 13 in 2016) have lacked related DOJ charges against company employees. Indeed, in the past decade over 75% of DOJ corporate enforcement actions have lacked related DOJ charges against company employees. Moreover, as highlighted in this prior post, the number of DOJ individual FCPA enforcement actions in 2016 and 2015 were fewer than the following years: 2008, 2009, 2010, 2011, 2013, and 2014.
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