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Deputy Attorney General Rod Rosenstein On …

rosenstein

Recently DOJ Deputy Attorney General Rod Rosenstein delivered this speech in which he stated: “The Department’s rhetoric gets a lot of attention – the policy memos and speeches.  But performance is what matters most.”

I completely agree and that is why, over the years, FCPA Professor has profiled over 165 FCPA enforcement agency speeches and otherwise analyzed whether reality is consistent with rhetoric.

Thus, when Rosenstein states in his speech (as DOJ officials have for years) that its “resolve [is] to hold individuals accountable for corporate wrongdoing,” I say performance is what matters most and the last 20 DOJ corporate FCPA enforcement actions have lacked related criminal charges against company employees (and going back to 2008 approximately 80% of DOJ corporate FCPA enforcement actions have lacked related criminal charges against company employees) (see here).

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On The Intersection Of Antitrust Enforcement And Corruption

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Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.

Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.

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Once Again, The DOJ Shoots Itself In The Foot

shootingselffoot

The Department of Justice want companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. Notwithstanding the DOJ slapping a formal title on its policy goal in April 2016 (i.e. the FCPA Pilot Program), this has long been the articulated policy position of the DOJ for nearly a decade.

Why then is the DOJ shooting itself in the foot by making decisions that should result in any board member, audit committee member, or general counsel informed of current events not making the decision to voluntarily disclose?

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Deputy Attorney General Rosenstein Signals Change Is Coming To DOJ Policy Regarding Corporate Prosecutions

Change

One of the best things ever written about the FCPA was penned by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

As highlighted in this prior post, the above was written in 1982, but it remains true today. Indeed, one disturbing dynamic of DOJ Fraud Section policy making is that it is largely driven by individuals – individuals who stay at the DOJ relatively briefly. Most recently, it was the 2015 “Yates Memo,” before that it was the 2008 “Filip Memo,” prior to that it was the 2006 “McNulty Memo,” prior to that it was the 2003 “Thompson Memo,” and prior to that it was the 1999 “Holder Memo.”

As highlighted in this report, yesterday Deputy Attorney General Rod Rosenstein signaled that change is yet again coming to DOJ policy regarding corporation prosecutions.

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A Seeming Mismatch

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Foreign Corrupt Practices Act enforcement officials frequently invoke national security and foreign affairs when talking about FCPA enforcement

Here are just a few recent quotes:

“We stand at a critical juncture in the fight against transnational corruption.  And the importance of this fight cannot be overstated.  The impact of corruption is unambiguous.  Because of the efforts of prosecutors in countries across the globe—some of them the very definition of high risk—the curtain has been ripped back/ revealing deep-rooted and pervasive corruption up to the highest levels of governance/ and putting on display for the world to see its devastating effects:

The way that corruption undermines the rule of law and destabilizes economies; the link between corruption and terrorism and the attendant threat to global security; the erosion of the free and fair market and, with it, the public’s confidence.” (See here).

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