Imagine a foreign country where enforcement of a specific law is vested solely, per enforcement agency policy, in the hands of a few individuals and where these few individuals are “in charge of all investigations, prosecutions, and resolutions” under the law; where the individuals set and champion policy objectives relevant to the specific law; where the individuals “enforce” the specific law against business organizations largely behind closed doors in the absence of meaningful judicial scrutiny and little case law setting the parameters of the specific law; and where the individuals then leave government service for lucrative jobs in the private sector to provide defense and compliance services to business organizations subject to the enforcement climate they helped create and champion.
Do you have concerns with such a system?
Yesterday, Morrision & Foerster announced “that Charles Duross will join the firm’s Litigation Department as a partner and will head its global anti-corruption practice, resident in the Washington, D.C. office, effective February 17, 2014.”
The release further states as follows.
“As the head of DOJ’s FCPA Unit, Mr. Duross was in charge of all of DOJ’s FCPA investigations, prosecutions and resolutions in the United States from April 2010 through his departure from the DOJ on Friday, January 24, 2014. Internationally recognized for his leading role in developing and implementing the government’s FCPA enforcement strategy, he was a Deputy Chief of the Fraud Section in the Criminal Division of the U.S. Department of Justice for almost four years. Once dubbed “Mr. FCPA” in the Washington Post, he is widely credited with developing the current enforcement regime, and recruiting and leading a talented team of prosecutors who have brought some of the most important FCPA cases in the statute’s 36-year history. Under his leadership, the FCPA Unit resolved more than 40 corporate cases, which include about two-thirds of the top 25 biggest corporate resolutions ever. Those matters resulted in approximately $1.9 billion in monetary penalties and the conviction of more than two dozen business executives and money launderers.
Mr. Duross’s tenure was also marked by his efforts to make FCPA enforcement more transparent and compliance with the statute more understandable to the business community. For example, working closely with his counterparts at the U.S. Securities and Exchange Commission, Mr. Duross was a principal author of the DOJ and SEC joint publication, “A Resource Guide to the U.S. Foreign Corrupt Practices Act,” which followed a series of consultations with business and compliance leaders. Mr. Duross also served as DOJ’s principal representative to the OECD’s Working Group on Bribery for many years and helped develop the OECD’s acclaimed “Good Practice Guidance on Internal Controls, Ethics and Compliance.”
“In the last two decades, there have been only three chiefs of DOJ’s FCPA program, and Chuck is one them – recognized globally as the leading foreign bribery prosecutor in the United States,” said Larren Nashelsky, chair of Morrison & Foerster. “His global role has included deep involvement with the OECD’s effort to globalize anti-corruption enforcement, including close cooperation with law enforcement across the country and around the world. Chuck’s intimate knowledge of the FCPA enforcement system he was instrumental in creating, along with his relationships with his fellow enforcement officials around the world, will be an invaluable asset to our clients. We are delighted he chose to join MoFo.”
Paul Friedman, co-chair of Morrison & Foerster’s FCPA & Anti-Corruption Practice, added, “Chuck brings an incredible array of talent and expertise to MoFo’s already robust practice in this area. Not only is he the government’s top FCPA authority and a gifted trial lawyer, he is an innovator in the field as the architect of the groundbreaking authoritative FCPA Resource Guide, which has proven invaluable to global companies and practitioners. We believe our global platform, particularly our strong presence in Asia, and our extensive roster of blue-chip technology, media, telecommunications and life sciences clients, are a great fit for Chuck. We are proud to welcome him to Morrison & Foerster.”
According to Bradley S. Lui, Managing Partner of MoFo’s Washington, D.C. office, Mr. Duross’s stellar reputation precedes him.
“Chuck is a highly accomplished trial lawyer whose expertise, energy, integrity and track record are well known and highly regarded across the Washington bar,” said Mr. Lui. “His fresh insight into the government enforcement mindset immediately enhances our already considerable capacity to assist global companies in managing their risk and exposure arising from the FCPA and other anti-corruption laws and regulations. This complements the many services we currently provide to clients facing cross-border regulatory compliance and enforcement issues, including antitrust, privacy and data security, financial services, government contracts, and energy. We look forward to welcoming him to the D.C. office and the firm.”
“I am excited by the opportunity to contribute to the continued success of a firm as dynamic as Morrison & Foerster,” said Mr. Duross. “I was attracted by MoFo’s incredibly talented attorneys, including its deep bench of FCPA, compliance and internal investigation experts, who boast well-deserved reputations for excellence, integrity and collegiality. I was also impressed by the firm’s representation of many of the world’s most successful and innovative technology companies and its unique position in Asia – where it has extensive roots and is widely recognized as the leading international firm in Japan. I am looking forward to working closely with my new colleagues to build on the firm’s success in helping clients navigate today’s challenging and complex anti-corruption landscape.”
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I have long suggested, a prohibition on DOJ (or SEC) FCPA enforcement attorneys with supervisory and discretionary authority from providing FCPA defense or compliance services for five years upon leaving government service.
Indeed, the legitimacy and credibility of the DOJ and SEC’s entire FCPA enforcement programs hinge on this policy proposal being adopted.
For additional reading on this topic, see here and here.
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Acting Assistant Attorney General Mythili Raman stated as follows regarding Duross.
“Chuck has been an extraordinary public servant for many years and has been a tireless and dedicated leader of our FCPA program. Chuck’s strategic, tenacious, and thoughtful approach to our FCPA enforcement program has not only resulted in individuals and institutions being held accountable for FCPA violations, but has helped to change corporate culture for the better. It has also allowed the Department of Justice to lead the rest of the world into an era where corruption is not simply accepted as an unavoidable cost of doing business.”
Raman also named Patrick Stokes, co-head of the fraud section’s securities and financial fraud unit, the new DOJ FCPA Unit Chief and stated:
“Patrick has served the Department with great distinction for 15 years, including the past four as co-head of the Fraud Section’s Securities and Financial Fraud Unit. With his judgment, intellect, and wealth of experience prosecuting and supervising many of the Department’s most significant domestic and international white collar matters, Patrick is supremely qualified to lead our FCPA program.”
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For additional coverage of Duross’s new position see:
here from the Wall Street Journal Law Blog
here from Compliance Week
here from Corporate Counsel (in which Duross states “I think I had a great run”)
here from Bloomberg (in which Duross states “in order to have the greatest deterrence possible, it was always our goal to hold individuals accountable and not just corporations” and as follows regarding the failed Africa Sting case “I still believe it was a better case than most people thought”)
here from the NY Times DealBook
here from Reuters
here from Law360 (noting – “Most [FCPA] cases settle behind closed doors, and only a handful are ever litigated. As a result, the exact contours of the law often remain murky, with enforcement trends subject to the whims of top government officials and largely immune from judicial oversight.)
here from the Washington Post (“Duross said he expects his practice at Morrison & Foerster to focus on advising companies on how to design preventive compliance programs, and conducting internal investigations. “Where I think I bring a lot of value is. . . I’ve seen what ‘best in class’ means with compliance programs,” he said. “I can say, ‘This is good, but here is where I think the weaknesses are.’ So if people in the C-suite ask if a program is good enough, I have the ability to give them comfort.”)
