Mum’s The Word From The DOJ As To The Compliance Counsel Position
In November 2015, the DOJ announced that it had retained “Hui Chen as a full-time compliance expert” and that “among her duties as a consulting expert, Chen will provide expert guidance to Fraud Section prosecutors as they consider the enumerated factors in the United States Attorneys’ Manual concerning the prosecution of business entities, including the existence and effectiveness of any compliance program that a company had in place at the time of the conduct giving rise to the prospect of criminal charges, and whether the corporation has taken meaningful remedial action, such as the implementation of new compliance measures to detect and prevent future wrongdoing.”
DOJ “Enforcement” Has Become A Joke
Historically, the DOJ had two choices when a business organization was the subject of criminal scrutiny. The two choices — which have served as the foundation of the U.S. criminal justice system for nearly a century when corporate criminal liability was first recognized — was either charge the entity with a legal violation or not charge.
Yet as highlighted in this chronological post ending with DOJ statements last week, in recent years DOJ “enforcement” has become a joke. When reading the below chronology of events, recognize that the vast majority of them occurred long before the Trump administration.
The Case That Keeps On Giving – DOJ Announces Additional Charges In PDVSA Bribery Action
Several prior posts (see here and here for instance) have highlighted the clustering phenomenon and how a few discreet instances of alleged bribery yield an inordinate amount of Foreign Corrupt Practices Act enforcement activity.
One such example is the DOJ’s long-standing enforcement action (charges were first brought in late 2015) in connection with alleged corrupt schemes to secure contracts from Venezuela’s state-owned and state-controlled energy company, PDVSA.
Yesterday, the DOJ announced that additional criminal charges were unsealed “against five former Venezuelan government officials for their alleged participation in an international money laundering scheme involving bribes made to corruptly secure energy contracts from Venezuela’s state-owned and state-controlled energy company, PDVSA.”
Friday Roundup
DOJ’s year in review, ripple, scrutiny alerts and updates, simply false, and amusing. It’s all here in the Friday roundup.
DOJ’s Year In Review
The DOJ Fraud Section recently released its year in review. According to the document, “the FCPA Unit has 32 prosecutors.” When reviewing the statistics in the document keep in mind that the FCPA Unit “investigates and prosecutes cases under the FCPA and related statutes.” In other words, the statistics include non-FCPA matters such as when the DOJ charges or prosecutes alleged “foreign officials” for money laundering and related offenses.
DOJ Individual Actions: The Strange Public – Private Divide
This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2017 and historically.
As highlighted in the prior post, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is, despite the DOJ’s rhetoric, 77% of DOJ corporate enforcement actions since 2006 have not (at least yet) resulted in any related DOJ FCPA charges against company employees.
Another very interesting and significant picture emerges when analyzing actual DOJ individual FCPA prosecutions based on whether the individual charged was employed by or otherwise associated with an issuer or a private business organization.