This previous post highlighted the DOJ’s announcement of a new “FCPA Corporate Enforcement Policy” and this post contained a general observation regarding the announcement.
Future posts will continue to analyze and provide commentary on the “FCPA Corporate Enforcement Policy.”
This post accepts the “FCPA Corporate Enforcement Policy” for what it is and sets forth in Q&A format, based on the DOJ’s own information and other objective information in the public domain, what you need to know about the program.
The user-friently Q&A is published as a courtesy to the legal and compliance community.
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Q: The document released by the DOJ is titled “FCPA Corporate Enforcement Policy” and has been inserted into the U.S. Attorneys’ Manual. Why did the DOJ release this new policy?
A: According to the DOJ, “the FCPA Corporate Enforcement Policy is aimed at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.” In Deputy Attorney General Rod Rosenstein’s speech announcing the program, he stated: “The new policy enables the Department to efficiently identify and punish criminal conduct, and it provides guidance and greater certainty for companies struggling with the question of whether to make voluntary disclosures of wrongdoing. […] We expect the new policy to reassure corporations that want to do the right thing. It will increase the volume of voluntary disclosures, and enhance our ability to identify and punish culpable individuals.”
Note: the other FCPA portions in the above link to the U.S. Attorneys’ Manual have been there for years and are not new.
Q: Are the policy goals the DOJ hopes to accomplish through its “FCPA Corporate Enforcement Policy” different than previous DOJ policy goals?
A: No. For over a decade the DOJ has encouraged companies to voluntarily disclose conduct that may implicate the FCPA so that it can, among other, things increase its prosecution of individuals. For instance, the April 2016 FCPA Pilot Program stated: “the principal goal of [the Pilot] program is to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self disclose FCPA-related misconduct …” […] “This pilot program is intended to encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered by or disclosed to law enforcement.”
Q: What are the key provisions in the “FCPA Corporate Enforcement Policy”?
A: The FCPA Corporate Enforcement Policy states:
When a company has voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated, all in accordance with the standards set forth below, there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.
If a criminal resolution is warranted for a company that has voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated, the Fraud Section:
- will accord, or recommend to a sentencing court, a 50% reduction off of the low end of the U.S. Sentencing Guidelines (U.S.S.G.) fine range, except in the case of a criminal recidivist; and
- generally will not require appointment of a monitor if a company has, at the time of resolution, implemented an effective compliance program.
To qualify for the FCPA Corporate Enforcement Policy, the company is required to pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue. […] The requirement that a company pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue may be satisfied by a parallel resolution with a relevant regulator (e.g., the United States Securities and Exchange Commission).”
Q: Are the three steps highlighted above: voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated new?
A: No. The 2016 FCPA Pilot Program contained the same three steps.
Q: Are the specifics of voluntary disclosure under the “FCPA Corporate Enforcement Policy” any different than the specifics of voluntary disclosure under the previous “FCPA Pilot Program”?
A: No. The “FCPA Corporate Enforcement Policy” states as follows and this is the same exact language used in the previous “FCPA Pilot Program.”
The Department will require the following items for a company to receive credit for voluntary self-disclosure of wrongdoing: (i) The voluntary disclosure qualifies under U.S.S.G. § 8C2.5(g)(1) as occurring “prior to an imminent threat of disclosure or government investigation”; (ii) The company discloses the conduct to the Department “within a reasonably prompt time after becoming aware of the offense,” with the burden being on the company to demonstrate timeliness; and (iii) The company discloses all relevant facts known to it, including all relevant facts about all individuals involved in the violation of law.
However, the “FCPA Pilot Program” did state: “A disclosure that a company is required to make, by law, agreement, or contract, does not constitute voluntary self-disclosure […]. Thus, the Fraud Section will determine whether the disclosure was already required to be made.”
Q: Are the specifics of full cooperation under the “FCPA Corporate Enforcement Policy” any different than the specifics of full cooperation under the previous “FCPA Pilot Program”?
A: Although the “FCPA Corporate Enforcement Policy” uses slightly different language than the previous “FCPA Pilot Program” the substance generally remains the same as highlighted in the below chart.
| FCPA Corporate Enforcement Policy | FCPA Pilot Program |
| In addition to the provisions contained in the Principles of Federal Prosecution of Business Organizations, see USAM 9-28.000, the following items will be required for a company to receive credit for full cooperation for purposes of USAM 9-47.120(1) (beyond the credit available under the U.S.S.G.):
As set forth in USAM 9-28.720, disclosure on a timely basis of all facts relevant to the wrongdoing at issue, including: all relevant facts gathered during a company’s independent investigation; attribution of facts to specific sources where such attribution does not violate the attorney-client privilege, rather than a general narrative of the facts; timely updates on a company’s internal investigation, including but not limited to rolling disclosures of information; all facts related to involvement in the criminal activity by the company’s officers, employees, or agents; and all facts known or that become known to the company regarding potential criminal conduct by all third-party companies (including their officers, employees, or agents); Proactive cooperation, rather than reactive; that is, the company must timely disclose facts that are relevant to the investigation, even when not specifically asked to do so, and, where the company is or should be aware of opportunities for the Department to obtain relevant evidence not in the company’s possession and not otherwise known to the Department, it must identify those opportunities to the Department; Timely preservation, collection, and disclosure of relevant documents and information relating to their provenance, including (a) disclosure of overseas documents, the locations in which such documents were found, and who found the documents, (b) facilitation of third-party production of documents, and (c) where requested and appropriate, provision of translations of relevant documents in foreign languages; Note: Where a company claims that disclosure of overseas documents is prohibited due to data privacy, blocking statutes, or other reasons related to foreign law, the company bears the burden of establishing the prohibition. Moreover, a company should work diligently to identify all available legal bases to provide such documents; Where requested, de-confliction of witness interviews and other investigative steps that a company intends to take as part of its internal investigation with steps that the Department intends to take as part of its investigation; and Where requested, making available for interviews by the Department those company officers and employees who possess relevant information; this includes, where appropriate and possible, officers, employees, and agents located overseas as well as former officers and employees (subject to the individuals’ Fifth Amendment rights), and, where possible, the facilitation of third-party production of witnesses. 4. Comment Cooperation Credit: Cooperation comes in many forms. Once the threshold requirements set out at USAM 9-28.700 have been met, the Department will assess the scope, quantity, quality, and timing of cooperation based on the circumstances of each case when assessing how to evaluate a company’s cooperation under the FCPA Corporate Enforcement Policy. “De-confliction” is one factor that the Department may consider in determining the credit that a company will receive for cooperation. The Department’s requests to defer investigative steps, such as the interview of company employees or third parties, will be made for a limited period of time and will be narrowly tailored to a legitimate investigative purpose (e.g., to prevent the impeding of a specified aspect of the Department’s investigation). Once the justification dissipates, the Department will notify the company that the Department is lifting its request. Where a company asserts that its financial condition impairs its ability to cooperate more fully, the company will bear the burden to provide factual support for such an assertion. The Department will closely evaluate the validity of any such claim and will take the impediment into consideration in assessing whether the company has fully cooperated. As set forth in USAM 9-28.720, eligibility for full cooperation credit is not predicated upon waiver of the attorney-client privilege or work product protection, and none of the requirements above require such waiver. Nothing herein alters that policy, which remains in full force and effect. Furthermore, not all companies will satisfy all the components of full cooperation for purposes of USAM 9-47.120(2) and (3)(b), either because they decide to cooperate only later in an investigation or they timely decide to cooperate but fail to meet all of the criteria listed above. In general, such companies will be eligible for some cooperation credit if they meet the criteria of USAM § 9-28.700, but the credit generally will be markedly less than for full cooperation, depending on the extent to which the cooperation was lacking. |
In addition to the USAM Principles, the following items will be required for a company to receive credit for full cooperation under this pilot (beyond the credit available under the Sentencing Guidelines)
As set forth in the DAG Memo on Individual Accountability, disclosure on a timely basis of all facts relevant to the wrongdoing at issue, including all facts related to involvement in the criminal activity by the corporation’s officers, employees, or agents; Proactive cooperation, rather than reactive; that is, the company must disclose facts that are relevant to the investigation, even when not specifically asked to do so, and must identify opportunities for the government to obtain relevant evidence not in the company’s possession and not otherwise known to the government; Preservation, collection, and disclosure of relevant documents and information relating to their provenance; Provision of timely updates on a company’s internal investigation, including but not limited to rolling disclosures of information; Where requested, de-confliction of an internal investigation with the government investigation; Provision of all facts relevant to potential criminal conduct by all third-patty companies (including their officers or employees) and third-party individuals; Upon request, making available for Department interviews those company officers and employees who possess relevant information; this includes, where appropriate and possible, officers and employees located overseas as well as former officers and employees (subject to the individuals’ Fifth Amendment rights); Disclosure of all relevant facts gathered during a company’s independent investigation, including attribution of facts to specific sources where such attribution does not violate the attorney-client privilege, rather than a general narrative of the facts; Disclosure of overseas documents, the location in which such documents were found, and who found the documents (except where such disclosure is impossible due to foreign law, including but not limited to foreign data privacy laws); Note: Where a company claims that disclosure is prohibited, the burden is on the company to establish the prohibition. Moreover, a company should work diligently to identify all available legal bases to provide such documents. Unless legally prohibited, facilitation of the third-party production of documents and witnesses from foreign jurisdictions; and Where requested and appropriate, provision of translations of relevant documents in foreign languages. Cooperation comes in many forms. Once the threshold requirements of the DAG Memo on Individual Accountability have been met, the Fraud Section should assess the scope, quantity, quality, and timing of cooperation based on the circumstances of each case when assessing how to evaluate a company’s cooperation under this pilot. For example, the Fraud Section does not expect a small company to conduct as expansive an investigation in as short a period of time as a Fortune 100 company.4Nor do we generally expect a company to investigate matters unrelated in time or subject to the matter under investigation in order to qualify for full cooperation credit. An appropriately tailored investigation is what typically should be required to receive full cooperation credit; the company may, of course, for its own business reasons seek to conduct a broader investigation. As set forth in USAM 9-28.720, eligibility for full cooperation credit is not predicated upon waiver of the attorney-client privilege or work product protection and none of the requirements above require such waiver. Nothing in the Guidance or the DAG Memo on Individual Accountability alters that policy, which remains in full force and effect. Furthermore, not all companies will satisfy all the components of full cooperation, either because they decide to cooperate only later in an investigation or they timely decide to cooperate but fail to meet all of the criteria listed above. In general, such companies should be eligible for some cooperation credit under this pilot if they meet the DAG Memo on Individual Accountability criteria, but the credit generally will be markedly less than for full cooperation, depending on the extent to which the cooperation was lacking. |
Q: Are there areas in which the “FCPA Corporate Enforcement Policy” falls short or is less explicit than the “FCPA Pilot Program”?
A: Yes. As highlighted in the above chart, the “FCPA Corporate Enforcement Policy” is less specific than the “FCPA Pilot Program” as to the issue of internal investigations. The “FCPA Pilot Program” stated: “[T]he Fraud Section does not expect a small company to conduct as expansive an investigation in as short a period of time as a Fortune 100 company. Nor do we generally expect a company to investigate matters unrelated in time or subject to the matter under investigation in order to qualify for full cooperation credit. An appropriately tailored investigation is what typically should be required to receive full cooperation credit; the company may, of course, for its own business reasons seek to conduct a broader investigation. For instance, absent facts to suggest a more widespread problem, evidence of criminality in one country, without more, would not lead to an expectation that an investigation would need to extend to other countries. By contrast, evidence that the corporate team engaged in criminal misconduct in overseeing one country also oversaw other countries would normally trigger the need for a broader investigation. In order to provide clarity as to the scope of an appropriately tailored investigation, the business organization (whether through internal or outside counsel, or both) is encouraged to consult with Fraud Section attorneys.”
Q: Are the specifics of timely and appropriate remediation under the “FCPA Corporate Enforcement Policy” any different than the specifics of timely and appropriate remediation under the previous “FCPA Pilot Program”?
A: Although there is a new portion of the “FCPA Corporate Enforcement Policy” concerning business records (highlighted below in italics and underlined) once again, although the “FCPA Corporate Enforcement Policy” uses slightly different language than the previous “FCPA Pilot Program,” the substance generally remains the same as highlighted in the below chart.
| FCPA Corporate Enforcement Policy | FCPA Pilot Program
|
| The following items will be required for a company to receive full credit for timely and appropriate remediation for purposes of USAM 9-47.120(1) (beyond the credit available under the U.S.S.G.):
Demonstration of thorough analysis of causes of underlying conduct (i.e., a root cause analysis) and, where appropriate, remediation to address the root causes; Implementation of an effective compliance and ethics program, the criteria for which will be periodically updated and which may vary based on the size and resources of the organization, but may include: The company’s culture of compliance, including awareness among employees that any criminal conduct, including the conduct underlying the investigation, will not be tolerated; The resources the company has dedicated to compliance; The quality and experience of the personnel involved in compliance, such that they can understand and identify the transactions and activities that pose a potential risk; The authority and independence of the compliance function and the availability of compliance expertise to the board; The effectiveness of the company’s risk assessment and the manner in which the company’s compliance program has been tailored based on that risk assessment; The compensation and promotion of the personnel involved in compliance, in view of their role, responsibilities, performance, and other appropriate factors; The auditing of the compliance program to assure its effectiveness; and The reporting structure of any compliance personnel employed or contracted by the company. Appropriate discipline of employees, including those identified by the company as responsible for the misconduct, either through direct participation or failure in oversight, as well as those with supervisory authority over the area in which the criminal conduct occurred; Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications; and Any additional steps that demonstrate recognition of the seriousness of the company’s misconduct, acceptance of responsibility for it, and the implementation of measures to reduce the risk of repetition of such misconduct, including measures to identify future risks.
|
Remediation can be difficult to ascertain and highly case specific. In spite of these difficulties, encouraging appropriate and timely remediation is important to reducing corporate recidivism and detecting and deterring individual wrongdoing. The Fraud Section’s Compliance Counsel is assisting us in refining our benchmarks for assessing compliance programs and for thoroughly evaluating an organization’s remediation efforts.
In evaluating remediation efforts under this pilot program, the Fraud Section will first determine whether a company is eligible for cooperation credit; in other words, a company cannot fail to cooperate and then expect to receive credit for remediation despite that lack of cooperation. The following items generally will be required for a company to receive credit for timely and appropriate remediation under this pilot (beyond the credit available under the Sentencing Guidelines): Implementation of an effective compliance and ethics program, the criteria for which will be periodically updated and which may vary based on the size and resources of the organization, but will include: Whether the company has established a culture of compliance, including an awareness among employees that any criminal conduct, including the conduct underlying the investigation, will not be tolerated; Whether the company dedicates sufficient resources to the compliance function; The quality and experience of the compliance personnel such that they can understand and identify the transactions identified as posing a potential risk; The independence of the compliance function; Whether the company’s compliance program has performed an effective risk assessment and tailored the compliance program based on that assessment; How a company’s compliance personnel are compensated and promoted compared to other employees; The auditing of the compliance program to assure its effectiveness; and The reporting structure of compliance personnel within the company. Appropriate discipline of employees, including those identified by the corporation as responsible for the misconduct, and a system that provides for the possibility of disciplining others with oversight of the responsible individuals, and considers how compensation is affected by both disciplinary infractions and failure to supervise adequately; and Any additional steps that demonstrate recognition of the seriousness of the corporation’s misconduct, acceptance of responsibility for it, and the implementation of measures to reduce the risk of repetition of such misconduct, including measures to identify future risks. |
Q: Are any of the above items explicitly required by the FCPA?
A: No. The FCPA’s internal controls provisions (applicable to issuers) states that issuers shall:
“devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary (a) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (b) to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.”
The FCPA specifically defines “reasonable assurances” and “reasonable detail” to mean “such level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs.
Moreover, the FCPA specifically states: “Where an issuer … holds 50% or less of the voting power with respect to a domestic or foreign firm, the provisions of [the books and records and internal controls provisions] require only that the issuer proceed in good faith to use its influence, to the extent reasonable under the issuer’s circumstances, to cause such domestic or foreign firm to devise and maintain a system of internal accounting controls consistent with [the statutory provision]. Such circumstances include the relative degree of the issuer’s ownership of the domestic or foreign firm and the laws and practices governing the business operations of the country in which such firm is located. An issuer which demonstrates good faith efforts to use such influence shall be conclusively presumed to have complied with the requirements of [the provisions].”
Q: The “FCPA Corporate Enforcement Policy” states that if a business organization engages in the three steps “there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.” Is this new?
A: Yes, the presumption is new as the “FCPA Pilot Program” stated that when those same three steps have been met the “Fraud Section’s FCPA Unit will consider a declination of prosecution.” However, the difference between a “presumption” and “will consider” in non-binding guidance is likely slight. Moreover, and very importantly, the “presumption” in the “FCPA Corporate Enforcement Policy” is not a presumption that there will be no enforcement action, only that the enforcement action will take the form of disgorgement/forfeiture.
Q: Does the “FCPA Corporate Enforcement Policy” define or provide other comment on what the following key terms mean: “executive management of the company,” “significant profit,” or “pervasiveness of the misconduct”?
A: No.
Q: Even if a business organization engages in the three steps and the aggravating circumstances are not present, will the business organization still be subject to an FCPA enforcement action?
A: Yes. Arguably the most important language in the “FCPA Corporate Enforcement Policy” is the following: “To qualify for the FCPA Corporate Enforcement Policy, the company is required to pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue. […] The requirement that a company pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue may be satisfied by a parallel resolution with a relevant regulator (e.g., the United States Securities and Exchange Commission).”
Q: Is this new?
A: No. Consistent with the previous “FCPA Pilot Program” the DOJ publicly announced seven so-called declinations. Three of the so-called declinations involved issuers (Nortek, Akamai Technologies, and Johnson Controls) and thus the disgorgement was satisfied by a parallel resolution with the SEC. Four of the so-called declinations involved non-issuers (HMT, NCH, Linde and CDM Smith) and pursuant to those the companies were required to pay disgorgement and/or forfeiture in the following amounts: $2.7 million; $335,000; $11.2 million; and $4 million. In other words, the notion that the “FCPA Corporate Enforcement Policy” provides amnesty, allows a business organization to escape an enforcement action, etc. is simply false.
Q: Does “relevant regulator” include foreign law enforcement?
A: Unclear.
Q: If certain of the aggravating circumstances are present, what happens under the “FCPA Corporate Enforcement Policy”?
A: As stated in the “FCPA Corporate Enforcement Policy”:
“If a criminal resolution is warranted for a company that has voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated, the Fraud Section: will accord, or recommend to a sentencing court, a 50% reduction off of the low end of the U.S. Sentencing Guidelines (U.S.S.G.) fine range, except in the case of a criminal recidivist; and generally will not require appointment of a monitor if a company has, at the time of resolution, implemented an effective compliance program.”
Q: Is this new?
A: No and Yes. The previous “FCPA Pilot Program” likewise stated: “if a criminal resolution is warranted, the Fraud Section’s FCPA Unit: may accord up to a 50% reduction off the bottom end of the Sentencing Guidelines fine range, if a fine is sought; and generally should not requirement appointment of a monitor if a company has, at the time of resolution, implemented an effective compliance program.” In other words, the “will” language used in the “FCPA Corporate Enforcement Policy” is different than the “may” / “should” language used in the “FCPA Pilot Program.” However, as discussed next the “FCPA Corporate Enforcement Policy” does not bind the DOJ.
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Learn More and RegisterQ: Is the DOJ bound by the “FCPA Corporate Enforcement Policy.”
A: No. Like other forms of DOJ guidance, the “FCPA Corporate Enforcement Policy” is non-binding. As stated by Deputy Attorney General Rosenstein in his speech: “The new policy, like the rest of the Department’s internal operating policies, creates no private rights and is not enforceable in court. […] The new policy does not provide a guarantee. We cannot eliminate all uncertainty. Preserving a measure of prosecutorial discretion is central to ensuring the exercise of justice.”
Q: Does a business organization have to voluntarily disclose FCPA misconduct to the DOJ?
A: No. As stated by Deputy Attorney General Rosenstein: “companies are free to choose not to comply with the FCPA Corporate Enforcement Policy.”
Q: If a business organization does not voluntarily disclose, but the DOJ learns of the organization’s alleged improper conduct, what happens under the “FCPA Corporate Enforcement Policy.”?
A: The “FCPA Corporate Enforcement Policy” states:
“If a company did not voluntarily disclose its misconduct to the Department of Justice (the Department) in accordance with the standards set forth [elsewhere in the policy], but later fully cooperated and timely and appropriately remediated in accordance with the standards set forth [elsewhere in the policy], the company will receive, or the Department will recommend to a sentencing court, up to a 25% reduction off of the low end of the U.S.S.G. fine range.”
Q: Is this a new feature of the “FCPA Corporate Enforcement Policy”?
A: No. From a substantive standpoint, the previous “FCPA Pilot Program” said the same thing.
Q: Does the “FCPA Corporate Enforcement Policy” supplant the Principals of Prosecution and/or Sentencing Guidelines?
A: No. Various portions of the “FCPA Corporate Enforcement Policy” specifically reference the Principles of Prosecution and/or Sentencing Guidelines.
Q: Issuers are subject to FCPA enforcement by both the DOJ and SEC. Does the “FCPA Corporate Enforcement Policy” impact SEC FCPA enforcement?
A: No. The “FCPA Corporate Enforcement Policy” is strictly a DOJ policy.
Q: In his speech, Deputy Attorney General Rosenstein suggested the “FCPA Pilot Program” has been successful. Specifically he stated: “In the first year of the Pilot Program, the FCPA Unit received 22 voluntary disclosures, compared to 13 during the previous year. In total, during the year and a half that the Pilot Program was in effect, the FCPA Unit received 30 voluntary disclosures, compared to 18 during the previous 18‑month period.” Does this necessarily mean that the “FCPA Pilot Program” has been successful?
A: Not necessarily. Simply put, many business organizations were voluntarily disclosing prior to the April 2016 Pilot Program and the precise question after the Pilot Program is whether the program is motivating voluntary disclosures to a great extent than prior to the program. It is impossible to empirically assess this.
Q: Is there a valid way to measure whether the Pilot Program has been successful in achieving one of its stated main goals?
A: Yes. As stated by the DOJ in the Pilot Program, “the principal goal of [the Pilot] program is to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self disclose FCPA-related misconduct …” […] “this pilot program is intended to encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered by or disclosed to law enforcement.” Measured against this main goal of the Pilot Program is the following fact: None of the seven corporate matters the DOJ has self-identified as being resolved pursuant to / or consistent with the Pilot Program (Nortek, Akamai Technologies, Johnson Controls, HMT LLC, NCH Corp, Linde Gas, and CDM Smith) have involved prosecution of individuals.
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