DOJ Refuses To Answer Basic Factual Questions Regarding Its Recent FCPA Enforcement Actions
“Greater transparency benefits everyone. The Criminal Division stands to benefit from being more transparent ..” (DOJ Assistant Attorney General, April 17, 2017).
As highlighted in this post, in April a high-ranking DOJ enforcement official stated that it is the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”
For those interested in holding FCPA enforcement officials accountable for their public statements, this requires a willingness by the DOJ to provide the public information that allows this occur.
Nearly 20 Corporate FCPA Enforcement Actions By The DOJ, Approximately $1.4 Billion Collected, And Not One Company Employee Has Been Charged With FCPA Offenses By The DOJ
As highlighted here, nearly two years ago the DOJ released the so-called Yates Memo, technically a policy memo titled “Individual Accountability for Corporate Wrongdoing.”
There was really nothing new in the Yates Memo as it continued the DOJ’s rhetoric about the importance of individual prosecutions. Specifically, the Yates Memo repeated the following DOJ rhetoric:
“One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.”
The Non-Story Of Hui Chen Leaving Her Contract Consulting Expert Position At The DOJ
In this recent podcast, former DOJ contract consulting expert Hui Chen says that her first draft of the February 2017 “Evaluation of Corporate Compliance Programs” policy document was dated January 21, 2016 but the Obama DOJ never publicly released the document. She also says that DOJ prosecutors don’t even read the compliance regulations they are subject to.
From my perspective, the rest of the extensive – often over-the-top and often misleading – media coverage concerning Chen leaving her contract consulting expert position at the DOJ (which she began during the Obama administration) because she has strong opinions about the Trump administration and in her words “I want to help elect candidates who stand for [values she shares], and [she] cannot do that while under contract with the Criminal Division due to Hatch Act restrictions” is a non-story.
The Many Contradictions In The DOJ’s FCPA Statutory Interpretation Positions
Given the paucity of contested DOJ Foreign Corrupt Practices Act enforcement actions, it is rare for the DOJ to publicly articulate its FCPA statutory interpretation positions.
But when this does occur, the DOJ frequently takes contradictory and inconsistent positions.
Counsel representing defendants in contested FCPA enforcement actions would be wise to analyze this dynamic and this dynamic represents yet another reason why more business organizations and individuals under FCPA scrutiny should put the DOJ to its burden of proof.
AG Sessions Delivers The DOJ’s FCPA Script
One can predict with a high degree of certainty what high-ranking DOJ officials will say about the Foreign Corrupt Practices Act even before hearing or reading the speech (and I say that based on highlighting on these pages over 100 FCPA enforcement agency speeches since 2009).
The script goes like this: the DOJ places a high-priority on FCPA enforcement as well as transparent enforcement; the DOJ is committed not just to corporate enforcement, but holding individuals accountable as well; and companies benefit from voluntary disclosure and cooperation.
Just like DOJ Deputy Assistant Attorney General Trevor McFadden did in February (see this prior post) and did so to varying degrees again twice last week (see here and here), yesterday Attorney General Jeff Sessions also delivered the DOJ’s FCPA script.