“In-Group Favoritism”?
Academics like to measure things.
However, just because something can be measured, doesn’t necessarily mean that it should be measured or that the measurement has any meaningful significance.
There are lots of things in the Foreign Corrupt Practices Act space that can and should be measured.
However, this recent article titled “In-Group Favoritism as Legal Strategy: Evidence from FCPA Settlements” once again demonstrates the silliness of measuring certain things. (See here for a prior post).
Slumbering Individual FCPA Enforcement Actions
Most in the Foreign Corrupt Practices Act space learn when the DOJ announces criminal FCPA charges against individuals. Thereafter, the tendency (including by myself) is to sort of forget about many of the individual cases.
However, recently I examined the dockets for all individuals criminally charged with FCPA offenses since January 1, 2017 and was surprised to learn that a meaningful percentage of these cases are slumbering with no substantive activity recorded in quite some time.
Thus, when viewing DOJ FCPA individual enforcement action statistics it is important to keep in mind that many of these cases are slumbering and are not being actively prosecuted.
Assistant AG Polite Talks Compliance And Related Topics
Recently DOJ Criminal Division Assistant Attorney General Kenneth Polite delivered this speech.
He focused on the following topics: how the DOJ evaluates “corporate compliance programs to ensure that companies are designing and implementing effective compliance systems and controls, creating a culture of compliance, and promoting ethical values,” corporate monitors, DOJ compliance related resources, and the consequences for a company violating a DOJ resolution agreement.
Polite also announced that he has asked his “team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law (based on the nature of the legal violation that gave rise to the resolution, as relevant), and is functioning effectively.”
During his speech, Polite used the words or concepts “detect and prevent” several times. Keep in mind however, that there is no relevant legal standard that requires corporate compliance programs to “detect and prevent” violations of law. For this reason among others, Polite’s policy suggestion is off-target.
Attorney General Garland On “Force-Multipliers” And Other Topics
Yesterday, Attorney General Merrick Garland delivered this speech (virtually) to the ABA Institute on White Collar Crime.
In the speech, Garland discussed many of the same topics that DOJ enforcement officials have been talking about for 10-15 years such as how prosecution of corporate crime is a DOJ priority, the importance of individual accountability, and corporate cooperation.
Garland began his speech as follows:
In The Words Of The DOJ …
Recently the Department of Justice Fraud Section released its 2021 Year in Review.
Set forth below are the FCPA relevant portions.
The Fraud Section has three “litigating units” including the FCPA Unit described as follows:
“The Foreign Corrupt Practices Act (FCPA) Unit has primary jurisdiction to investigate and prosecute violations of the FCPA and works in parallel with the Securities and Exchange Commission (SEC), which has civil enforcement authority for violations of the FCPA by publicly traded companies. The FCPA Unit has brought criminal enforcement actions against individuals and companies and has focused its enforcement efforts on both the supply side and demand side of corrupt transactions. The FCPA Unit also plays a leading role in developing policy as it relates to the FCPA, and training and assisting foreign governments in the global fight against corruption.”