One of the interesting things about writing about the FCPA and related issues on a daily basis for over 15 years is the frequency in which I come across content of former DOJ/SEC enforcement officials saying things in conflict with positions they articulated while at the government. (See here for a prior post).
Hui Chen was “the first-ever Compliance Counsel Expert at the United States Department of Justice, Hui was the exclusive consultant to the federal prosecutors in the Fraud Section, evaluating corporate ethics and compliance programs in areas such as anti-fraud, anti-bribery/kickback, healthcare, quality control, manipulation of financial markets, process safety, and environmental protection. She is the author of the Fraud Section’s well known “Evaluation of Corporate Compliance,” which has been widely praised by compliance practitioners and recognized by government regulators and standard setters around the world.” (See here).
During Chen’s time at the DOJ, the message from the DOJ (as it has long been before and after her tenure) was always disclose and cooperate.
This recent clip of Chen speaking at a conference is quite interesting as she is now saying that corporations and individuals to “can fight the government in its investigation”
During the excerpted portion she states:
“In the corporate compliance community, it is the only place in the United States of America, where we talk as if we are in a totalitarian state, where the government comes knocking on the door and you are dead.
Like, the next thing you do, you are being dragged to some execution chamber and that’s the end.
We have rights in this country. Corporations have rights. People have rights. You can fight the government in its investigation.
And again, you don’t hear about these things, because these cases where people have chosen to go routes other than running to self-disclose, fully cooperate, you just don’t hear about them.
Because guess what? A lot of times those don’t end up in actual prosecutable cases.
They really truly walk away.
I have seen companies basically resist all the way and say “no we are not doing it anymore.” “You want more? You go to the grand jury. You want more? You can indict us.”
Let us remember that this is a judicial process where corporations and citizens have options.
When the government knocks on the door, it does not mean a death sentence for you.
You have options. You can ask for warrants, you can ask for defense counsel, you can get bail.
All those things that apply to individuals applies to companies as well.”
Chen’s comments are being pitched on social media by the event promoter as things that “nobody says out loud.”
Not true.
These same general issues have been discussed on FCPA Professor (and by many others) for over 15 years. (See here, here, here, here, here, here).
