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A Q&A Regarding The Uncomfortable Truths And Double Standards Of Bribery Enforcement

Double Standard4

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.”

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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.

Something Is Missing From This Story

Missing

Last week, the DOJ announced that it “filed a motion to dismiss a forfeiture action against approximately $115 million alleged to be proceeds of foreign official corruption and involved in money laundering in accordance with a 2007 settlement that directed the funds to be used for the benefit of poor youth and families in Kazakhstan.”

As noted in the DOJ release, the funds were in connection with the “prosecution of James H. Giffen and his company, Mercator” and were “allegedly the proceeds of illegal bribe payments to senior Kazakh officials in exchange for oil transactions and property involved in money laundering.” The funds were previously released to “the BOTA Foundation, a new Kazakh foundation required to be independent of the government of Kazakhstan, managed by a respected international non-governmental organization and established with the assistance of the World Bank.”

In the DOJ release, Assistant Attorney General Leslie Caldwell stated:

“Transparent, responsible repatriation of corruption proceeds can make a real difference for communities harmed by the abuse of public office. In just five years of operations, the BOTA Foundation helped more than 208,000 people in need in Kazakhstan, turning more than $115 million in alleged bribe money into assistance to parents, families with disabled children and youth seeking higher education.  Through our Kleptocracy Asset Recovery Initiative, the Department of Justice is committed to fighting back against impunity and seeking creative ways to reduce the harms caused by corruption.”

In this season of giving, it is easy to get warm, fuzzy feelings about the DOJ’s announcement.

However, something is missing from the story – something significant – and this post inserts the missing piece of the puzzle.

It is true that in 2003 James Giffen was criminally charged with “making more than $78 million in unlawful payments to two senior officials of the Republic of Kazakhstan in connection with six separate oil transactions, in which the American oil companies Mobil Oil, Amoco, Texaco and Phillips Petroleum acquired valuable oil and gas rights in Kazakhstan.”

However, Giffen’s defense was that his actions were made with the knowledge and support of the CIA, the National Security Council, the Department of State and the White House. The DOJ did not dispute that Giffen had frequent contacts with senior U.S. intelligence officials or that he used his ties within the Kazakh government to assist the United States. With the court’s approval, Giffen sought discovery from the government to support his public authority defense and much of the delay in the case was due to the government’s resistance to such discovery and who was entitled to see such discovery.

In 2010, the enforcement action took a sudden and mysterious turn when Giffen agreed to plead guilty to a one-paragraph superseding indictment charging a misdemeanor tax violation.  The enforcement action ended with the presiding judge imposing no jail time on Giffen, praising him for advancing U.S. “strategic interests,” calling him a Cold War hero, and commenting that the enforcement action should have never been brought in the first place. Giffen himself stated: “Would I do it again? Absolutely. What we were doing was important.”

Giffen presumably prevailed over the DOJ not because of the facts or the law, but because he possessed significant leverage over the government in that he asserted his actions were taken with the knowledge and support of the highest levels of our  government.  A Foreign Policy columnist noted that Giffen’s legal team “understood correctly that he could set up a collision between the DOJ and the CIA in which the latter would probably prevail.” Likewise, a Harpers columnist noted that the Giffen enforcement action had “been the focus of political manipulation concern for years” and that the end of the case seemed to ratify that view and “the notion of an independent, politically insulated criminal-justice administration in America [took] another severe hit.”

A “Look In The Mirror” Moment

Last month, WikiLeaks announced:

“WikiLeaks release[d] an unprecedented Australian censorship order concerning a multi-million dollar corruption case explicitly naming the current and past heads of state of Indonesia, Malaysia and Vietnam, their relatives and other senior officials. The super-injunction invokes “national security” grounds to prevent reporting about the case, by anyone, in order to “prevent damage to Australia’s international relations”. The court-issued gag order follows the secret 19 June 2014 indictment of seven senior executives from subsidiaries of Australia’s central bank, the Reserve Bank of Australia (RBA). The case concerns allegations of multi-million dollar inducements made by agents of the RBA subsidiaries Securency and Note Printing Australia in order to secure contracts for the supply of Australian-style polymer bank notes to the governments of Malaysia, Indonesia, Vietnam and other countries.

The suppression order lists 17 individuals, including “any current or former Prime Minister of Malaysia”, “Truong Tan San, currently President of Vietnam”, “Susilo Bambang Yudhoyono (also known as SBY), currently President of Indonesia (since 2004)”, “Megawati Sukarnoputri (also known as Mega), a former President of Indonesia (2001–2004) and current leader of the PDI-P political party” and 14 other senior officials and relatives from those countries, who specifically may not be named in connection with the corruption investigation.”

For more on the WikiLeaks release, see here.

Coverage of the development was not surprisingly negative.  For instance, this Global Investigations Review article stated that the revealed suppression order “undermines Australia’s attempts to bring enforcement of foreign bribery cases up to international standards.”

To which I say … wait a minute, let’s look in the mirror shall we.

For starters, the Australian case was actually filed in court and the order was issued by a judge.  This simple sentence is more than one can say about the vast majority of corporate FCPA enforcement actions that are resolved via non-prosecution agreements or deferred prosecution agreements in the absence of any meaningful judicial scrutiny.  Add to this, the SEC’s increased use of administrative actions in the FCPA context, and the initial take-away point is that the Australian case – even at its earliest stages – involves a court – something that can not be said in the majority of corporate FCPA enforcement actions.

Moreover, are many FCPA enforcement actions actually transparent?

Can one truly say that the BAE enforcement action and charging decisions (see here, here and here) were transparent and the true facts and circumstances known to the public?

Can one truly say that the public knows the real story behind the James Giffen enforcement action (see here and here)?

In 2003, Giffen was criminally charged with “making more than $78 million in unlawful payments to two senior officials of the Republic of Kazakhstan in connection with six separate oil transactions, in which various American oil companies acquired valuable oil and gas rights in Kazakhstan.”

However, Giffen’s defense was that his actions were made with the knowledge and support of the CIA, the National Security Council, the Department of State and the White House. The DOJ did not dispute that Giffen had frequent contacts with senior U.S. intelligence officials or that he used his ties within the Kazakh government to assist the United States. With the court’s approval, Giffen sought discovery from the government to support his public authority defense and much of the delay in the case was due to the government’s resistance to such discovery and who was actually entitled to see such discovery.

In 2010, the enforcement action took a sudden and mysterious turn when Giffen agreed to plead guilty to a one-paragraph superseding indictment charging a misdemeanor tax violation.  The enforcement action ended with the presiding judge imposing no jail time on Giffen and stating that he was a Cold War hero and that the enforcement action should have never been brought in the first place.

Giffen presumably prevailed over the DOJ not because of the facts or the law, but because he possessed significant leverage over the government in that he asserted his actions were taken with the knowledge and support of the highest levels of the U.S. government.  A Foreign Policy columnist noted that Giffen’s legal team “understood correctly that he could set up a collision between the DOJ and the CIA in which the latter would probably prevail.” Likewise, a Harpers columnist noted that the Giffen enforcement action had “been the focus of political manipulation concern for years” and that the end of the case seemed to ratify that view and “the notion of an independent, politically insulated criminal-justice administration in America [took] another severe hit.”

In short, think what you want about the above-mentioned Australia development.

However, when doing so look in the mirror to realize that U.S. enforcement of the FCPA is, in certain cases, even more troubling.

Picking and Choosing?

The sentencing memos in the Ousama Naaman matter are interesting reads. Naaman’s memo (here), submitted by Abbe Lowell of McDermott Will & Emery (here), provides a glimpse into cooperation by an individual FCPA defendant.

The DOJ’s memo (here), while requesting a downward departure, details how Naaman’s cooperation was not great at all and how Naaman is seemingly contesting various facts and issues he agreed to in pleading guilty.

The DOJ seeks a recommended sentence of 90 months (7.5 years) which would result in 79 months of additional incarceration given that Naaman has already 11 months of time served.

As previously reported (here), Naaman’s sentencing has been delayed until April 18th.

One aspect of the DOJ’s sentencing memo I found interesting is where the DOJ warns the judge that a “minimal sentence could not only possible be construed as a violation of U.S. treaty obligations […] but could do much to undermine the efforts by the United States Departments of Commerce and State to educate U.S. businesses about the harm caused by and risk of engaging in transnational bribery.” (See pgs. 34-36).

The treaty reference is to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (see here) and the DOJ specifically cites Art. 3 Sec. 1 – “The bribery of a foreign public official shall be punishable by effective, proportionate and dissuasive criminal penalties. The range of penalties shall be comparable to that applicable to the bribery of the Party’s own public officials.”

Is the DOJ picking and choosing which articles of the OECD Convention it wants to abide by?

Article 5 of the same OECD Convention, under the heading “Enforcement,” states that investigation and prosecution of bribery offenses “shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Are we to believe that the Giffen prosecution (see here for prior posts) was not influenced by considerations on the “potential effect upon relations with another state.”?

Are we to believe that the BAE prosecution and the lack of FCPA charges (see here for the prior post) was not influenced by “considerations of national economic interest” or the “identity of the natural or legal persons involved.”

It would seem that every time the DOJ specifically states in a sentencing memo (i.e. Siemens, BAE, Daimler, etc.) that, in deciding how to resolve a case, it considered the collateral consequences – including the risk of debarment and exclusion from government contracts – that prosecution of the offense is being “influenced by considerations of national economic interest” or the “identity of the natural or legal persons involved.”

In an effort to avoid yet another rejection of its FCPA sentencing recommendation, the DOJ is now warning a judge that a “minimal sentence” could be “construed as a violation of U.S. treaty obligations.”

In doing so, is the DOJ picking and choosing which articles of the OECD Convention it will abide by?

Interesting, Significant and Bold

Last week I had the pleasure of participating in Securities Docket’s Year in Review webcast (see here for viewing – the FCPA portion begins at about 51 minutes).

For those of you who missed the event, below are my thoughts on four significant events from 2010, three interesting events from 2010, and two bold predictions for 2011.

The FCPA in 2010 was interesting, significant, and bold all at once. Among other things, it was a year in which Assistant Attorney General Lanny Breuer declared a “new era of FCPA enforcement.” (see here).

Significant Events

The Foreign Corrupt Practices Act

If anyone out there still believes that the FCPA is a law that only applies to U.S. companies, you clearly have been living under a rock.

2010 was the year of non-U.S. companies resolving FCPA exposure.

BAE (here)(I am hesitant to call this matter an FCPA enforcement action because it wasn’t, but everyone seems to be doing so), Daimler (here), Technip (here), Eni/Snamprogetti (here), ABB (here), Panalpina (here), and most recently Alcatel-Lucent (more in a future post).

It has been reported that approximately 90% of 2010 FCPA fines and penalties were paid by foreign companies.

I expect this trend to continue – albeit perhaps not at the level seen in 2010. The 4th member of the JV involved in Bonny Island bribery – JGC of Japan – has yet to settle, certain of the medical device and pharma companies that have disclosed FCPA issues are non-U.S. companies, and an emerging trend I see is an increased focus on China-based issuers. For instance, last year, 25% of the IPOs were China based issuers and last month, Rino International (see here) disclosed an FCPA inquiry, the first time I believe a China-based issuer has been the focus of an FCPA inquiry.

Two Tiers of Justice

Under basic rule of law principles, the law is to be equally and consistently applied to all subject to the law, regardless of how big or small the company is and regardless of what type of company is involved.

In a troubling trend, two tiers of justice have emerged from FCPA enforcement.
If the company is a large multinational company, the company will end up paying large fine, but chances are the company will not be charged with FCPA anti-bribery violations.

For instance, the DOJ’s allegations against BAE (see here) included that the company provided various benefits – through U.S. payment mechanisms – to influence Saudi officials through and through other conduct that clearly had a U.S. nexus. Yet, BAE, one of the world’s largest defense contractors, was not charged with any FCPA anti-bribery violation.

Daimler, according to the DOJ (see here), had a corporate culture that tolerated and/or encouraged bribery and its numerous bribery schemes involved various high-ranking executives. Yet, Daimler, was not charged with any FCPA anti-bribery violations.

It’s bribery yet no bribery, and it contributes to what I’ve called the façade of FCPA enforcement (see here).

While certain companies in certain industries appear immune from FCPA anti-bribery charges, in other instances, instances generally involving small companies such as Nexus Technologies (here) or Lindsey Manufacturing (here), the DOJ seems to come out with guns a blazing and criminally indicts the company for violating the FCPA. One can legitimately ask what did these companies do that BAE, Daimler, and some other companies didn’t do?

The two tiers of justice is also present when it comes to individual enforcement actions. As was highlighted in the recent Senate hearing, one odd aspect of the most high-profile, egregious instances of corporate bribery is that, for the most part, no individuals are charged. Yet in cases that can only be called minor in comparison, Nexus Technologies, Lindsey Manufacturing and the Haiti Teleco cases come to mind, the DOJ again seems to come out with guns a blazing and criminally indicts multiple individuals.

Companies that commit bribery on a major scale, involving hundreds of millions dollars, are still able to secure multi-million dollar U.S. government contracts (see here and here). On the other hand, individuals like Charles Jumet are sent to prison for nearly 7 years for making a $200,000 payment to secure a lighthouse and buoy contract and conspiring to violate the same law that major companies are apparently immune from violating. (See here).

DOJ officials frequently talk about the rule of law (here), and the importance of consistency and transparency in charging decisions (here), but these examples raise the issue of whether such principles are followed when it comes to FCPA enforcement.

Is the Facilitating Payments Exception Meaningless?

When Congress passed the FCPA in 1977 and amended it in 1988 it clearly understood and accepted that the statute was not going to cover every conceivable unethical payment made in transacting overseas business. (See here). The legislative history is clear on this point and that is why the FCPA contains an express exception for so-called facilitating or grease payments.

Yet one can legitimately ask whether this exception intended by Congress has any meaning.

In November, a group of companies collectively paid approximately $235 million to settle FCPA enforcement actions principally involving import permits for oil rigs, other customs and duty payments to Nigerian officials, and payments to expedite shipment of product in Nigeria and some other jurisdictions. (See here for a summary of the CustomsGate enforcement actions).

It seems a bit silly when several major companies settle an FCPA enforcement action for this amount of money to ask the question – did the conduct at issue even violate the FCPA, but this question should be asked in connection with the CustomsGate enforcement actions. It is also a question that can legitimately be asked as to several other recent FCPA enforcement actions that involve permits, licenses, certifications and other administrative tasks that have nothing to do with obtaining or retaining government contracts.

The issue as I see it is not whether such payments are ethical, but whether such payments violate the narrow anti-bribery provisions Congress intended and whether, once again, the DOJ and the SEC are actually enforcing the FCPA as Congress intended or whether the FCPA has morphed into a broader corporate ethics statute.

If the FCPA should become a broader corporate ethics statute, let Congress make that decision – not the DOJ or the SEC.

Emergence of a Plaintiff’s Bar

The FCPA, it has been held by some courts, does not contain a private right of action – yet there are other legal avenues available to plaintiffs to hold companies that violate the FCPA accountable. (See here).

Common causes of action include derivative claims against officers and directors, securities fraud claims by investors, RICO claims, unfair competition claims and antitrust claims such as last year when one of Innospec’s competitors sued it in Virginia state court in connection with its recently settled FCPA enforcement action. (See here).

Such causes of action have been pursued before 2010, but 2010 witnessed an explosion in such claims and so-called investigations by plaintiff firms representing investors.

The most noteworthy example is what I called the feeding frenzy surrounding SciClone Pharamaceutials. (See here). Last August, the company simply made an FCPA disclosure – that it was contacted by the SEC and the DOJ in connection with the government’s pharma industry sweep. The company’s stock dropped about 30%. Within weeks about a dozen plaintiff firms announced “investigations” and/or filed securities fraud cases – never mind the company’s stock price regained all that value within about a month.

When a company’s FCPA violations are found to be condoned or encouraged by the board or officers, such plaintiff causes of action would seem to be warranted.

However, these types of FCPA violations are rare – the more typical situation is where, because of respondeant superior, a company faces FCPA exposure because of the actions of a single or small group of employees whose conduct was in violation of the company’s FCPA policies and procedures. In these typical situations, I question what value these so-called “investigations” by plaintiff firms have or what purpose these derivative or securities fraud claims serve.

Interesting Events

Giffen Enforcement Action

When an enforcement action begins with allegations (here) that James Giffen made more than $78 million in unlawful payments to two senior Kazakhstan officials in connection with oil transactions for major American oil companies and abruptly ends with a one-paragraph superceding information (here) charging a misdemeanor tax violation and the company he worked for settling an FCPA enforcement action focused solely on two snowmobiles (here) – I call that interesting.

Even more interesting is that part of Giffen’s defense was that his actions were taken with the knowledge and support of the CIA, the National Security Council, the Department of State and the White House. (See here for a prior post).

A few years ago George Clooney and Matt Damon starred in Syriana (here) a movie about the FCPA.

The Giffen enforcement action presents a superb Hollywood script – it is the most mysterious conclusion to an FCPA enforcement action ever – made even more interesting given that the presiding judge called Giffen a cold war hero and stated that the case should never have been brought in the first place. (See here for the prior post).

Africa Sting Cases

In January 2010, the DOJ arrested 22 defendants – most while attending a gun show in Las Vegas – in connection with a major undercover sting operation in which the government, utilizing an individual who had already pleaded guilty to separate FCPA violations, assisted the government in manufacturing a case involving a fake foreign official from Gabon. (See here, here and here for prior posts).

The defendants (see here) are principally owners or employees of small gun and weapons companies.

I would put this case in the interesting category.

Contrary to media reports and even DOJ statements, it is not the first time undercover tactics were used in connection with an FCPA investigation (see here), but the magnitude and breadth of the tactics were indeed unprecedented.

This case is far from over and the remaining defendants are sure to raise entrapment, among other legal issues, and this will be an interesting case to follow in 2011.

The Africa Sting case has draw the attention of an industry that probably had never thought much about FCPA compliance. Thus, regardless of the ultimate outcome of the case, it has likely resulted in an industry and small enterprises thinking more proactively about FCPA compliance and risk assessment.

Greater Scrutiny and Why Questions

2010 also saw greater scrutiny and why questions about the FCPA, FCPA enforcement and what I have called FCPA Inc.

For the time time in nearly a decade, Congress held hearings (see here) on the FCPA in which some basic why questions were asked.

The U.S. Chamber sponsored a paper (here) titled “Restoring Balance – Proposed Amendments to the FCPA” that was widely covered and, in some circles, railed.

Several members of Congress are legitimately scratching their heads as to why companies that settle fraud, bribery and corruption cases continue to secure lucrative U.S. government contracts and the House passed a bill (here) that seeks to debar companies found to be in violation of the FCPA from receiving U.S. government contracts. Problem is, because of the façade of FCPA enforcement (see here), it will be an impotent bill.

In May 2010, Congressman Towns, chairman of the House Committee on Oversight and Government Reform, sent a letter to Attorney General Holder expressing concern that settlements of civil and criminal cases, including FCPA cases, by the DOJ are being used as a shield to foreclose other appropriate remedies such as suspension and debarment. (See here for the prior post).

And in Spring 2010, Forbes ran a front-page story titled “The Bribery Racket,” an article, notwithstanding some of its flamboyant language, raised several valid and legitimate questions and issues when it comes to FCPA enforcement. (See here for the prior post).

This scrutiny in 2010 raised valid and legitimate public policy questions that hopefully will be picked up on in 2011.

Bold Predictions

After a year in which (1) the largest individual prosecutions involved a fake “foreign official” (2) the most egregious cases of corporate bribery were prosecuted without FCPA anti-bribery charges; and (3) a signature case abruptly ended with a misdeamenor tax violation and a corporate prosecution involving two snowmobiles, I wonder what bold will look like in 2011.

Here are two bold predictions for 2011.

The Dodd-Frank Whistleblower Provisions Will Have a Negligible Impact on FCPA Enforcement

My (what seems) contrarian thoughts are the same as when I first made this post in July.

Enforcement of the U.K. Bribery Act Will Be Disciplined and Measured

The U.K. Bribery Act, already delayed, and with implementation slated for April 2011, has been the subject of much discussion and much over-hype in my opinion.

It has been called the FCPA “on steroids” (here) and if one subscribes to the industry marketing material, you might be left with the impression that the end of the world is near.

True, the Bribery Act is broader than the FCPA. For starters, it is an all-purpose bribery and corruption statute and addresses bribery and corruption in the private sector – not just bribery to “foreign officials” like the FCPA.

True, the Bribery Act has potentially a very broad reach – so does the FCPA.

True, the Bribery Act has no exception for facilitating payments – the FCPA does – although as highlighted above, query whether this exception means anything.

However, the Bribery Act has the “adequate procedures” defense – something the FCPA does not have – but query whether it should.

Thus, while the Bribery Act is indeed more broad than the FCPA, because of this defense, it is at the same time more narrow than the FCPA.

Public statements by U.K. officials suggest that this adequate procedures defense is a meaningful defense. For instance, in September at the World Corruption and Compliance Forum, an event I chaired in London, the U.K. Attorney General (Dominic Grieve) stated (see here) that “any company small or large” that puts into place a system of adequate procedures “has nothing to fear” when an employee or agent “goes off the rails” and makes a bribe payment. Attorney Grieve said that a company should have nothing to fear if it is “walking the walk, and talking the talk” when a rogue employee makes an improper payment. On the other hand, Attorney Grieve stated that that “those who don’t heed the warnings and don’t take the necessary steps have something to fear.” Richard Alderman, the Director of the U.K. Serious Fraud Office, stated in October (see here) as follows. “I have heard some people say that this offence is one of strict liability. I do not agree. No offence will have been committed if there were adequate procedures. I have also heard people say that the fact of bribery might mean that there were inadequate procedures by definition and so the defence can never be made out. Again, I do not agree. In the real world there may be occasional lapses despite adequate procedures rigorously enforced. The issue ultimately for the Judge and jury (and for the SFO in deciding on a prosecution) will be – were those procedures adequate?” As to the adequate procedures defense, Vivian Robinson (General Counsel of the Serious Fraud Office) said in an October webcast (here) that because of the defense “there is every reason to be optimistic that we won’t get as a result of the Act and this particular section a huge expanse in the number of prosecutions of corporates.”

As demonstrated by the Innospec matter (see here), the U.K. courts are playing, and rightfully so, a much greater role than U.S. courts in reviewing bribery and corruption cases. I’ve been told that even if the SFO prosecutes a corporate bribery case with an NPA or DPA, the U.K. courts will still play a meaningful oversight role – a role that is unfortunately not true here in the U.S.

In sum, I don’t see how companies already subject to the FCPA and already thinking about compliance in a pro-active manner, have much to worry about when it comes to the U.K. Bribery Act because of the adequate procedures defense.

I will be surprised if U.K. enforcement of the Bribery Act reaches the level of U.S. enforcement of the FCPA and I will be surprised if the U.K. Bribery Act develops outside of the judicial system as has generally been true with U.S. enforcement of the FCPA.

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