Assistant Attorney General Caldwell’s Q&A Regarding FCPA Enforcement
This post is from Debevoise & Plimpton attorneys Veronica Glick and Jonathan Tuttle.
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Yesterday, Assistant Attorney General Leslie Caldwell discussed the DOJ’s FCPA enforcement goals at George Washington University Law School in Washington, D.C. Caldwell’s remarks, available here, covered three topics: enforcement focus on large-scale international corruption; transparency in charging decisions with respect to corporate prosecutions; and fostering corporate compliance and cooperation.
The discussion below focuses on the Q&A portion of the event, which included the audience and panelists Karen Popp of Sidley Austin and Susan Karamanian of GW Law. Assistant Attorney General Caldwell answered questions regarding the DOJ’s new FCPA pilot program, relationships with foreign law enforcement and the DOJ’s understanding of the FCPA’s jurisdictional reach.
Assistant Attorney General Leslie Caldwell On Transparency, The DOJ’s FCPA Pilot Program, And Corporate Compliance
Yesterday, Assistant Attorney General Leslie Caldwell participated in an event at George Washington University Law School focused on the Foreign Corrupt Practices Act. The DOJ released these prepared remarks that will be familiar to most FCPA practitioners in that the speech did not break any new ground.
Ms. Caldwell spoke at great length about transparency (similar to this April 2015 speech she delivered on the topic) and added how the DOJ’s FCPA Pilot Program (announced in April 2016) was an effort in increase transparency.
This is an interesting statement given that the majority of the DOJ’s so-called declination letters under the Pilot Program merely reference “potential” FCPA violations and offer no substance whatsoever regarding the “potential” violations.
A Simple Common Sense Fix To Enhance The Credibility Of The DOJ’s So-Called “Declinations”
The DOJ’s recent so-called “declinations” suffer from a credibility problem.
As highlighted in prior posts here and here, the salient question that should be asked in connection with the DOJ’s recent “declination” letters to Johnson Controls, Nortek and Akamai Technologies is what viable criminal charges did the DOJ actually decline? From the only information in the public domain (the SEC’s resolution documents in each matter) the answer appears to be none.
If the DOJ wants to enhance the credibility of its so-called “declinations,” there is a simple fix – a modest proposal first advanced on this page six years ago – long before the DOJ’s FCPA Pilot Program and long before the term “declination” became part of the FCPA vocabulary.
Friday Roundup
Asset recovery, scrutiny alerts and updates, nominate, and for the reading stack. It’s all here in the Friday roundup.
Asset Recovery
FCPA enforcement is not the only prong of the DOJ’s bribery and corruption fight.
Asset recovery – part of the DOJ’s so-called Kleptocracy Initiative – is another prong and recently the DOJ announced its largest action ever brought under the program. As stated in this release:
Criminal Books And Records And Internal Controls Enforcement Actions
I sometimes read certain FCPA commentators and just shake my head in disbelief. Does the author have any regard for facts and/or any interest in conducting basic research to discover the facts?
For instance, in this recent post a commentator states:
“Until now, the Justice Department has not brought a criminal circumvention of internal controls case. If the Justice Department brings such a case, it will be subject to scrutiny. The Justice Department has been very careful when conducting enforcement actions against individuals under the FCPA, and I am sure they will look for the “right set of facts” to bring such a precedent setting case. A criminal prosecution of internal controls and books and records violations will raise the stakes on the wisdom and applicability of the provisions. It is one thing to bring a civil action – it is quite another to bring a criminal action, especially against individuals for violating so-called internal rules and regulations.”
The notion that the DOJ has never brought a criminal enforcement action involving books and records and internal controls violations is just plain false.