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In The Words of John Keeney

Long-time DOJ attorney John “Jack” Keeney recently died.  See here for the Washington Post article.

Keeney (as Deputy Attorney General, Criminal Division) testified during Congressional FCPA reform hearings in the mid-1980’s.   For instance, on June 10, 1986, Keeney testified at a Joint Hearing Before the Subcommittee on International Finance and Monetary Policy and the Subcommittee on Banking, Housing, and Urban Affairs.  The hearing focused on S. 430, a bill to amend and clarify the FCPA.  (An interesting aside, so toxic was the political environment to amend a law called the “Foreign Corrupt Practices Act” that several reform bills  sought to change the name of the FCPA –  S. 430 was titled the “Business Accounting and Foreign Trade Simplification Act”).

In his prepared statement, Keeney presented the “views of the Department of Justice” on S. 430.  Kenney stated as follows.  “The Department supports S. 430 and its objective of removing unnecessary impediments to foreign trade …”.   As noted in this previous post, one of the major items of reform in the 1980’s was revising the FCPA’s third-party provision which, as enacted, was triggered by a broad “while knowing or having to reason to know” standard.

Keeney supported removal of the “reason to know” standard.  He stated as follows.  “The Justice Department is sensitive to the unnecessary problems that the American business community has encountered in its attempts to interpret and apply the ‘reason to know’ standard.  We also know it is difficult to define exactly what constitutes ‘reason to know.’  For that reason, the policy of the Department has been to prosecute only those cases where the evidence of awareness – whether direct or circumstantial – was so clear as to constitute actual knowledge of the bribe scheme.   This policy would not be changed by abolishing the ‘reason to know’ standard in favor of a more objective standard and would improve the clarity of the Act.”

One provision of S. 430 would have required the DOJ to issue binding opinions with respect to the criminal provisions of the FCPA.  Keeney did not support such a provision “since its general purpose is presently being met by the existing Foreign Corrupt Practices Act Review Procedure.”

As to the provision in S. 430 that gave the Attorney General authority to issue guidelines “concerning both the type of conduct which constitutes compliance with the criminal provisions of the Act as well as general precautionary procedures which businesses may voluntarily use to ensure compliance,” Keeney stated as follows.  “From a commercial as well as an enforcement point of view, the Department does not believe that issuing guidelines or precautionary procedures would be advisable.  Accordingly, we do not feel that this provision is necessary.  The Department has determined that such guidelines are impractical for several reasons.  No matter how carefully crafted, guidelines would have the effect of unnecessarily restricting business transactions and possibly placing American businesses at a disadvantage with their foreign competitors.  Moreover, the Department cannot place simple dollar limits on bribe or gratuties and then apply these limits uniformly.  Reasonable business practices differ significantly from industry to industry as well as from country to country.  As a matter of policy, the Department cannot publicly ignore a small but otherwise corrupt transaction any more than it can place dollar limitations on the actions prosecutable under the mail or wire fraud statutes.  If the Department promulgates guidelines, due process requires that these guidelines govern any position the Department later takes in any criminal action.  While arguably helpful to businesses, such guidelines are not really necessary.  Under the FCPA Review Procedure , a specific factual situation may be resolved without binding the Department in a case involving a somewhat different factual situation.  The Department believes the [Review Procedure] is the least restrictive and most useful process for resolving any instance of perceived ambiguity in the interpretation of the FCPA and should be used in place of guidelines.”

When the FCPA was amended in 1988, Congress did indeed request that the Attorney General issue guidelines, however as noted in this prior post, the DOJ decided not to issue such guidelines.

Following the hearing, Senator D’Amato asked Keeney various questions for the record as to DOJ’s FCPA Review Procedure – such as “has it been used very frequently, how many times since the procedure was put in place?”  In pertinent part, Keeney responded as follows.  “The Review Procedure has resulted in 18 Department opinions since its inception.  On various other occasions, applications for review have been submitted but subsequently withdrawn.  [See here for a prior post regarding the FCPA “Mulligan Rule”]. In addition, the Criminal Division of the Department has received frequent telephone inquiries about the Procedure which are not followed by any written request.”

John Keeney may no longer be with us, but the issues he discussed in 1986 (DOJ FCPA guidance and questions surrounding the DOJ’s FCPA Opinion Procedure Program) remain issues today.

A Renewed Declination Proposal

According to an October 28th article by Mary Jacoby in Main Justice, “Duross on Declinations,”  DOJ FCPA Unit Chief Charles Duross was recently asked whether the DOJ would publish information on its FCPA declination decisions.  According to the article, Duross said he was not “particularly comfortable doing it” and that disclosing declinations was a “very foreign concept” to him.  Duross is quoted as saying that DOJ doesn’t “disclose declinations of drug cases or bank robberies” and he “likes to think [that DOJ treats FCPA cases] like any other criminal case.”

However, FCPA cases are not like other criminal cases.  The majority of corporate FCPA enforcement actions are voluntarily disclosed, drug cases and bank robberies are not ordinarily voluntarily disclosed, and therein lies the difference.

My proposal (see here for the prior post from August 2010 when I first made this proposal in the aftermath of Digi International’s disappearance act)  is triggered when a company voluntarily discloses an FCPA internal investigation to the DOJ  and when the DOJ declines enforcement.  In these situations, it is in the public interest to require the DOJ  to publicly state, in a thorough and transparent manner, the facts the company disclosed to the DOJ and why the DOJ declined enforcement on those facts.

Here is why I think the proposal makes sense and is in the public interest.

For starters, the DOJ is already enthusiastic when it comes to talking about FCPA issues. Enforcement attorneys from both the DOJ are frequent participants on the FCPA conference circuit and there seems to be no other single law that is the focus of more DOJ speeches than the FCPA. Thus, there is clearly enthusiasm and ambition at the DOJ when it comes to the FCPA.

Further, the DOJ has the resources to accomplish this task as it has touted its increased FCPA resources and the new personnel hired to focus on the FCPA. Combine enthusiasm and ambition with sufficient resources and personnel and the proposal certainly seems doable.

Most important, the DOJ is already used to this type of exercise. It is called the FCPA Opinion Procedure Release  a process the DOJ frequently urges those subject to the FCPA to utilize.

Under the Opinion Procedure regulations, an issuer or domestic concern subject to the FCPA can voluntarily disclose prospective business conduct to the DOJ which then has 30 days to respond to the request by issuing an opinion that states whether the prospective conduct would, for purposes of the DOJ’s present enforcement policy, violate the FCPA.

The DOJ’s opinions are publicly released  and the FCPA bar and the rest of FCPA Inc. study these opinions in great detail in advising clients largely because of the general lack of substantive FCPA case law.

If the DOJ is able to issue an enforcement opinion as to voluntarily disclosed prospective conduct there seems to be no principled reason why the enforcement agencies could not issue a non-enforcement opinion as to voluntarily disclosed actual conduct

Such agency opinions would seem to be more valuable to those subject to the FCPA than the already useful FCPA Opinion Procedure Releases. If the enforcement agencies are sincere about providing guidance on the FCPA, as they presumably are, such agency opinions would seem to provide an ideal platform to accomplish such a purpose.

Requiring the enforcement agencies to disclose non-enforcement decisions after a voluntary disclosure could also inject some much needed discipline into the voluntary disclosure decision itself – a decision which seems to be reflexive in many instances any time facts suggest the FCPA may be implicated.

Notwithstanding the presence of significant conflicting incentives to do otherwise, it is hoped that FCPA counsel advises clients to disclose only if a reasonably certain legal conclusion has been reached that the conduct at issue actually violates the FCPA.  Accepting this assumption, transparency in FCPA enforcement would be enhanced if the public learned why the enforcement agencies, in the face of a voluntary disclosure, presumably disagreed with the company’s conclusion as informed by FCPA counsel.  If the enforcement agencies agreed with the conclusion that the FCPA was violated, but decided not to bring an enforcement action, transparency in FCPA enforcement would similarly be enhanced if the public learned why.

A final reason in support of the proposal is that it would give companies  a benefit by contributing to the mix of public information about the FCPA.  In most cases, companies spend millions of dollars investigating conduct that may implicate the FCPA and on the voluntary disclosure process. When the enforcement agencies decline an enforcement action, presumably because the FCPA was not violated, these costs are forever sunk and the company can legitimately ask why it just spent millions investigating and disclosing conduct that the DOJ  did not conclude violated the FCPA.

However, if the DOJ was required to publicly justify its declination decision, the company would achieve, however small, a return on its investment and contribute to the mix of public information about the FCPA – a law which the company will remain subject to long after its voluntary disclosure and long after the enforcement agencies declination decision. Thus, the company, the company’s industry peers, and indeed all those subject to the FCPA would benefit by learning more about the DOJ’s enforcement conclusions.

Transparency, accountability, useful guidance, a return on investment.

All would be accomplished by requiring the DOJ  to publicly justify a declination decision in the limited instances where no enforcement action follows a voluntary disclosure.

Latest FCPA Opinion Procedure Release Reflects High Level Of Anxiety

During last month’s House hearing on the FCPA (see here for the prior post) Representative James Sensenbrenner told Greg Andres (DOJ) that if Andres were the general counsel of a company advising the CEO and everyone else, he would likely be advising the company in the “most narrow way” and “exercising the greatest amount of caution.”

Indeed, the current era of FCPA enforcement has led to a high level of anxiety and skittishness over things that should not, with the end result being overcompliance and inefficient use of resources.

Case in point, the latest FCPA Opinion Procedure Release.

Despite a statutory affirmative defense concerning reasonable and bona fide expenses concerning promotion, demonstration or explanation of products or services, and despite several past “on-point” Opinion Procedure Releases that a first-year associate would be capable of analyzing, the Requestor in Release 11-01 was still apparently skittish enough to go through the time (and no doubt expense) of obtaining a DOJ seal of approval as to conduct that would not raise an eyebrow if directed to a non-foreign official

On June 30th, the DOJ released (here) its first FCPA Opinion Procedure Release of the year – a release dealing with reasonable and bona fide travel expenses in connection with the promotion, demonstration or explanation of products or services – an affirmative defense under the FCPA’s anti-bribery provisions.

The Requestor was a “U.S. adoption service provider” that “proposes to pay certain expenses for a trip to the United States by one official from each of two foreign government agencies to learn more about the services provided by the Requestor.”

According to the Release, “the two officials will be selected by their agencies, without the involvement of the Requestor” and the Requestor “has no non-routine business pending before the foreign government agencies that employ these officials.”

The Requestor “intends to pay for economy class air fare, domestic lodging, local transport, and meals” and it represented, among other things, that:

it “will host only the designated officials, and not their spouses or family members;”

it “intends to pay all cost directly to the providers [and] no cash will be provided directly to the officials;

any souvenirs to the officials “would reflect Requestor’s business and/or logo and would be of nominal value;” and

it will not “fund, organize, or host any other entertainment, side trips, or leisure activities for the officials, or provide the officials with any stipend or spending money.”

Based on the Requestor’s representations and the above facts and circumstances, the DOJ stated that “the expenses contemplated are reasonable under the circumstances and directly relate to ‘the promotion, demonstration, or explanation of [the Requestor’s] products or services” and therefore the DOJ “does not presently intend to take any enforcement action with respect to the planned program and proposed payments described in the request.”

For additional commentary on the Release 11-01, see here from Thomas Fox (“the question posed to the Department of Justice (DOJ) is so straight-forward, and has been previously asked and answered, that it is difficult to understand how any first year compliance practitioner did not know the answer to it”); here from Howard Sklar (“this is, simply put, not a situation that should have gone to the DOJ”); and here from the FCPA Blog (“in its first FCPA Opinion Procedure Release of 2011, the DOJ confirmed what should be obvious — that the promotional expenses affirmative defense can be used to pay travel expenses of government officials who are being shown a company’s products”).


Two feature articles this week, one from the New York Times the other from Canada’s Globe and Mail, focus on business dealings in Libya.

The New York Times article (here) by Eric Lichtblau, David Rohde and James Risen begins by noting that “some companies, including several based in the United States, appeared willing to give in to” Libya’s demand for monetary contributions to help Libya pay $1.5 billion for its role in the downing of Pan Am Flight 103 – as a condition of continuing to do business in the country.

The article also notes that after the U.S. reopened trade with Libya in 2004, American and international oil companies, telecommunications firms and contractors “discovered that Colonel Qaddafi or his loyalists often sought to extract millions of dollars in “signing bonuses” and “consultancy contracts” — or insisted that the strongman’s sons get a piece of the action through shotgun partnerships.”

Among other examples cited, the articles notes that “in 2008, Occidental Petroleum, based in California, paid a $1 billion “signing bonus” to the Libyan government as part of a 30-year agreement.” According to the article, “Petro-Canada, a large Canadian oil company, made a similar $1 billion payment after Libyan officials granted it a 30-year oil exploration license.”

One strange aspect of the FCPA is that it does not prohibit payments to foreign governments, only foreign officials. See e.g., DOJ Opinion Procedure Release 09-01 (here) stating that the conduct at issue would “fall outside the scope of the FCPA” in that the things of value “will be provided to the foreign
government, as opposed to individual government officials …”.

The Globe and Mail article (here) by Nathan Vanderklippe begins as follows.

“Near the centre of Tripoli sits the bunker, residence and military command post of Moammar Gadhafi. It is hidden behind three concentric rings of defensive walls. It is a fortress that sprawls over six square kilometres. But for much of the past decade, those working hardest to penetrate it have not been citizens rising up against a despot. They have, instead, been wealthy Western companies, intent on wringing riches from the Libyan desert’s massive oil reserves. For some of them, gaining access to Col. Gadhafi – whether directly, or through one of his powerful sons, or through a shadowy network of well-connected “consultants” – was just one of the many challenges of operating in a country some remember as downright bizarre.”

The FCPA Mulligan Rule?

The FCPA Opinion Procedure regulations (here) state that issuers and domestic concerns subject to the FCPA may “obtain an opinion of the Attorney General as to whether certain specified, prospective — not hypothetical — conduct conforms with the Department’s present enforcement policy regarding the antibribery provisions of the Foreign Corrupt Practices Act.”

Since 1980, the DOJ has issued 55 FCPA opinion procedure releases (see here and here).

In nearly every instance the DOJ expresses an opinion that it does not intend to take any enforcement action as to the disclosed facts or conduct? If my figures are correct, in 54 of the 55 opinion procedure releases (98%) the DOJ expressed such an opinion. [The only exception would appear to be 98-01 (here)].

Perhaps you already knew this, but recently I learned something that may help explain this 98% no enforcement statistic.

What did I learn?

That often times, when the requestor senses that it will not receive a favorable DOJ opinion, it simply withdraws the request. I confirmed that this practice does indeed occur with a former high-ranking DOJ FCPA official and others.

Call it the FCPA mulligan rule.

Sec. 80.15 of the opinion procedure regulations specifically states that “a request submitted under the foregoing procedure may be withdrawn prior to the time the Attorney General issues an opinion to such request.”

But here is the issue as I see it.

How does the requestor get the sense that it will receive an unfavorable DOJ opinion so that it can withdraw the request before the opinion procedure is publicly released?

After all, Sec. 80.09 of the regulations, titled “no oral opinion,” states: “no oral clearance, release or other statement purporting to limit the enforcement discretion of the Department of Justice may be given.”

This would seen to eliminate DOJ oral communications to the requestor as to DOJ’s initial observations which may then motivate the requestor to withdraw the request.

Sec. 80.8 of the regulations requires that the Attorney General “respond to the request by issuing an opinion …”. So if the initial DOJ observation which then motivates the requestor to withdraw the request is communicated in writing, should the writing be made public in the same fashion as the opinions that are actually released? Would this not add to the mix of information available as to the FCPA?

As long as I am in question mode, let me throw out this question (see here for the prior post) – should DOJ’s declination decisions be made public?

At a recent public event, I asked Charles Duross (DOJ FCPA chief) this question and he said (see here) that it was a “difficult issue.” In a recent video (here – start at the 6 minute mark), William Stuckwisch (DOJ) wondered aloud whether DOJ declination decisions should be made public. Last, but not least, in this recent Q&A with Sue Reisinger of Corporate Counsel Billy Jacobson (a former high-ranking DOJ FCPA official) stated: “The Justice Department could publicize cases anonymously that it has not brought because of the company’s actions.”

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