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The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2016

This recent post [1] highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2016.

Continuing with the FCPA statistical feast, this post follows the chronology of FCPA scrutiny to FCPA enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.

That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4.25 years was the median length of time companies that resolved FCPA enforcement actions in 2016 were under scrutiny.

Before highlighting the statistics, some general background.

The DOJ has long recognized the issues associated with long-protracted investigations. For instance, in this [2] 2005 speech the DOJ’s then Assistant Attorney General of the Criminal Division stated:

“Simply put, speed matters in corporate fraud investigations.  The days of five-year investigations, of agreement after agreement tolling the statute of limitations – while ill-gotten gains are frittered away and investor confidence sinks – are increasingly a thing of the past.”

Statute of limitations are ordinarily the remedy the law provides for legal gray clouds.

Yet in corporate FCPA enforcement actions, the fundamental black-letter legal principle of statute of limitations seems not to matter because cooperation is the name of the game and to raise bona fide legal arguments such as statute of limitations is not cooperating in an investigation.

Given the “carrots” and “sticks” relevant to resolving corporate FCPA enforcement actions, one of the first steps a company the subject of FCPA scrutiny often does to demonstrate its cooperation is agree to toll the statute of limitations or waive any statute of limitations defenses.

[3]

Given this dynamic, the enforcement agencies face little or no time pressure in bringing corporate FCPA enforcement actions.  The end result is that the gray cloud of FCPA scrutiny often hangs over a company far too long.

This dynamic has long been discussed by FCPA commentators.

One FCPA commentator stated [4]:

“[Companies under FCPA scrutiny are] routinely asked to waive the statute of limitations. They could refuse but none do; refusal might trigger an instant enforcement action against the company or its people. So the waiver gives the feds limitless time to investigate, deliberate, or procrastinate. And no one can force the DOJ or SEC to move on, either with an enforcement action or a declination. The result? Companies [under FCPA scrutiny] get stuck in FCPA limbo.  […] But the DOJ and SEC should always keep one eye on the calendar. The threat of FCPA enforcement […] casts a long shadow. It darkens the future for management, shareholders, lenders, customers, and suppliers. Exactly the problem the statute of limitations was supposed to fix.”

Another FCPA commentator stated [5]:

“The Justice Department and the SEC attorneys have a duty to manage caseloads and move cases responsibly. I called it “cut and run.”  Either the government has the evidence or it does not – and they now fairly early on what direction a case is heading.”

As highlighted in this prior post [6], members of Congress have also questioned the long time periods associated with FCPA scrutiny.

More recently and prominently, Paul Pelletier (former principal deputy chief of the DOJ Criminal Division’s Fraud Section) has become a leading voice on this issue. In a dandy Wall Street Journal editorial titled “The Foreign Bribery Sinkhole at Justice [7],” Pelletier wrote:

“Absurdly long and costly investigations, however, may cause companies to reassess the value of reporting FCPA violations to the federal government.

When bribery investigations are publicly resolved in a timely fashion, other businesses can more readily identify ongoing bribery schemes operating within their industry or region and ensure that their anti-bribery compliance programs adequately address those current schemes. That opportunity is lost when criminal resolutions drag out for five or more years. Deterrence then is principally the size of the monetary penalty.

The Justice Department needs to do more than churn out resolutions to foreign bribery cases notable only for their record-breaking penalties. Rigorous and prompt FCPA enforcement can have a dramatic impact on the insidious and corrosive effect of corruption overseas and provide … restorative justice …”.

In this [8] piece Pelletier goes into more-depth on the same topic.  In pertinent part he writes:

“[T]he pattern of costly delay in FCPA investigations continues unabated.  While every government investigation and resolution poses unique facts and circumstances that may serve to delay the investigatory process, these recent long-developing FCPA resolutions, together with the findings of the OECD report, are convincingly problematic.  The staggering investigative costs, ultimately borne by employees and shareholders alike, however, also can reach unconscionable levels.

[…]

The Department of Justice has recently articulated that at least part of the rationale or justification for these interminable investigations is that “[c]ompared to other white collar crime, the challenges associated with FCPA investigations can be much greater.”  The DOJ offered “overseas evidence” as one basis for this greater challenge.

But this statement fails to explain the  more than twofold increase in investigatory durations from historical norms.  A dispassionate, experience-based analysis of this overly broad assertion exposes a faulty premise.  Simply put, the DOJ can and must do better.

[…]

With a cooperating corporation, FCPA investigators routinely find themselves in the unique position of having prompt access to overseas evidence and witnesses without a need to resort to cumbersome international treaty requests.  Such cooperation is much like the prosecution having secured a cooperator with unfettered access to the critical evidence.

[…]

Regardless of the reason or reasons for these protracted investigations, both the continued vitality of the DOJ’s FCPA enforcement efforts and the prominence of the United States as the global leader of anti-corruption enforcement would seem to demand a renewed effort to dramatically reduce the time frame necessary to achieve resolution.

[…]

Legitimate enterprises benefit from those kinds of real-time revelations, and criminal political regimes can be immediately identified and deterred.  Moreover, when a criminal resolution discloses and punishes criminal conduct that occurred five or more years earlier, any deterrent effect of the resolution is significantly diminished.  This is particularly true in industries where the overseas corrupt conduct flourishes with abandon.

At that late stage, the principal deterrent effect is relegated to the size of the monetary penalty — something the DOJ continues to emphasize with all too much frequency and relish.  As recent cases have demonstrated, lengthy FCPA investigations also place untenably wasteful financial burdens on corporations, their employees and their shareholders.

[…]

Given that the DOJ’s FCPA unit within the Fraud Section has more than doubled in size from 2009 to today and has been fortified by a dedicated squad of FBI agents, it is puzzling that many of these investigations seem to drag on interminably.  The DOJ must strive to be more than just “FCPA Inc.,” churning out stale resolutions notable only for their record-breaking penalties.”

In conclusion Pelletier writes:

“The interests of justice are neither served nor advanced when FCPA investigations routinely drag on for five or more years.  Rigorous and prompt FCPA enforcement with respect to current bribery schemes can have a dramatic impact on the insidious and corrosive effect of corruption overseas.  Real-time enforcement is just one component of what must be a larger proactive strategy to root out overseas corruption, which includes punishing the bribe takers as well as the bribe payers and dispossessing the government officials of access to ill-gotten gains.

Curing the deficiencies that lead to costly and wasteful delays will require a systemic and sustained effort, primarily by the DOJ.  It will also require a more focused approach by outside counsel.  Although the ameliorative benefits resulting from such change will not be achieved overnight, the long-term vitality and efficacy of the DOJ’s anti-corruption enforcement efforts ultimately rests on the government’s ability to sustainably alter the status quo.”

As highlighted here [9], Pelletier suggested that the high attrition levels at the DOJ likely contribute to the length of FCPA inquiries. As he stated “most FCPA investigations will be passed from prosecutor to prosecutor, almost certainly leading to unnecessarily protracted investigations.” As both the DOJ and SEC are in the midst of much change in light of the upcoming change in Administrations, will this dynamic impact pending instances of FCPA scrutiny?

For FCPA Flash podcast episodes discussing the long time periods associated with FCPA scrutiny see here [10] (Paul Pelletier) and here [11] (Homer Moyer – a dean of the FCPA bar).

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Elevate Your Research [12]

With this background, the post next highlights for all 27 corporate FCPA enforcement actions from 2016 the length of time the company was under FCPA scrutiny.

[Note in three instances, it is unclear when a company’s FCPA scrutiny began, in other instances reasonable approximations were made based on generic descriptions of FCPA scrutiny beginning and recognizing that there is a big difference between FCPA scrutiny beginning in January of a year and December of the same year].

The median of the above numbers is 4.25 years.

The range of years companies were under FCPA scrutiny were 1.5 years in Nortek and Akamai (in which the SEC specifically mentioned the “expeditious resolutions”) to 6 years (AstraZeneca and Embraer).

Not all FCPA enforcement actions are the same of course, but the egregiousness of the conduct does not seem to determine the length of time a company is under FCPA scrutiny. For instance, both AstraZenecea and SciClone were, comparatively-speaking garden-variety type of FCPA enforcement actions, and the scrutiny lasted 6 years and 5.5 years. On the other hand, both VimpelCom and Odebrecht / Braskem were egregious FCPA enforcement actions and the scrutiny lasted a shorter 4 years and a much shorter 1.5 years.

When assessing the long time periods associated with FCPA scrutiny, it is important to keep in mind that both the DOJ/FBI and SEC have specific FCPA units that are uniquely tasked with investigating and prosecuting FCPA offenses.

Moreover, it also important to recognize that close to 40% of corporate FCPA enforcement actions in 2016 were the result of voluntarily disclosures. In this regard, the following statements from the General Cable resolution documents are representative of the dynamics in such voluntary disclosures.

In the words of the DOJ:

The company “conducted a thorough internal investigation; made regular factual presentations and proactively provided updates to the Fraud Section; voluntarily made foreign-based employees available for interviews in the United States; produced documents, including translations, to the Fraud Section from foreign countries in ways that did not implicate foreign data privacy laws; collected, analyzed, and organized voluminous evidence and information for the Fraud Section; and identified, investigated, and disclosed conduct to the Fraud Section that was outside the scope of its initial voluntary self-disclosure”

In the words of the SEC:

General Cable “further provided complete and timely cooperation with the staff by providing detailed presentations on the key findings of the investigations, and promptly producing all relevant documents and information (including thousands of documents translated into English), chronologies, key document binders, interview downloads, and forensic accounting analyses. GCC also made its current or former employees available for interviews by the staff upon request, including facilitating certain employees to travel to the United States from abroad for interviews.”