Paper Attempts To Shine A Light Inside The Negotiation Room
Any time an article title contains a word I have never used, don’t know how to pronounce, and have to “look up” to understand its meaning, I am automatically skeptical that the article will provide anything of value. But then again, perhaps my vocabulary is deficient.
Looking up the word “endogeneity” really didn’t even help, but apparently it is a term in econometrics (whatever that term means) that “broadly refers to situations in which an explanatory variable is correlated with the error term.”
Word choice aside, a recent article titled “The Compliance Game: Legal Endogeneity in Anti-Bribery Settlement Negotiations” by Branislav Hock and Elizabeth David-Barrett caught my eye.
The article doesn’t exactly chart new ground. For instance, many of the issues were touched upon in my 2010 article The Facade of FCPA Enforcement and several others have touched upon the same general topics since. Nevertheless, the article attempts to analyze and access what happens during negotiations between counsel and the government leading up to an FCPA (or related) enforcement action.
Thoughts On The Monaco Memo
This previous post summarized Deputy Attorney General Lisa Monaco’s memo to DOJ personnel titled “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group.”
This post provides analysis and commentary.
The memo – while technically an internal memo to DOJ personnel – is obviously much more than that as it (and previous iterations) was publicly released and serves as a de facto DOJ policy document.
Coalition For Integrity Calls For Post-Employment Restrictions On FCPA Enforcement Attorneys And Greater Transparency In FCPA Enforcement
For nearly a decade, these pages have called for restrictions when DOJ / SEC FCPA enforcement attorneys with supervisory and discretionary authority leave the government for private practice careers devoted to the FCPA. (See here, here, here and here among other posts).
I was thus happy to see that the Coalition for Integrity (“C4I” – a non-profited devoted to combating corruption and promoting integrity in the public and private sectors) recently called for post-employment restrictions on DOJ and SEC FCPA enforcement attorneys who leave for private practices in this policy paper submitted to the OECD in connection with its Phase 4 Evaluation of the U.S. Implementation of the OECD Anti-Bribery Convention.
It is a bit ironic though as C4I has several individuals on its Board of Directors who left the DOJ / SEC for lucrative positions in FCPA Inc. including an individual who still describes himself as “the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program.”
The Many Issues To Consider From The Cognizant Technology Enforcement Action
Previous posts here and here highlighted the recent Foreign Corrupt Practices Act enforcement action against Cognizant Technology Solutions and two of its former executives.
This post continues the analysis by highlighting several issues to consider.
Timeline
As highlighted in this prior post, Cognizant disclosed its FCPA scrutiny in a September 2016 SEC filing. Thus from start to finish, Cognizant’s FCPA scrutiny lasted approximately 2.5 years. While 2.5 years is shorter than recent medians of over 4 years (see here), 2.5 years is still too long for FCPA scrutiny to last.
Friday Roundup
Transparency, hilarious, fact-checking, little sense, just saying, and for the reading and listening stack. It’s all here in the Friday roundup.
Transparency
The Project on Government Oversight (POGO) recently this document titled “Baker’s Dozen: 13 Policy Areas That Require Congressional Action” noting that a “lack of transparency around enforcement of the FCPA leaves lingering questions about its utility.” POGO then proposes: