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.
Do you have concerns with such a system?
Set forth below is factual information regarding former DOJ and SEC Foreign Corrupt Practices Act Unit Chiefs including where they are now. This factual information is in addition to numerous former high-ranking DOJ and SEC enforcement officials who have also left government service for FPCA Inc.
Mark Mendelsohn (DOJ FCPA Unit Chief 2005 – 2010)
Left the DOJ to join Paul Weiss. From his law firm bio:
the “internationally acknowledged and respected as the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program.”
“As deputy chief of the Fraud Section from 2005 to 2010, Mark was responsible for overseeing all DOJ investigations and prosecutions under the FCPA …”
“During his tenure administering the DOJ’s FCPA enforcement program, the DOJ brought more than 50 prosecutions against corporations for violations of the FCPA and related offenses, resulting in more than $1.5 billion in criminal penalties.”
Charles Duross (DOJ FCPA Unit Chief 2010 – 2014)
Left the DOJ to join Morrison Foerster. From his law firm bio:
“Mr. Duross most recently served as a Deputy Chief in the Fraud Section in the Criminal Division of the U.S. Department of Justice, where he led the Foreign Corrupt Practices Act (FCPA) Unit and was in charge of all of the DOJ’s FCPA investigations, prosecutions and resolutions in the United States. Internationally recognized for his leading role in developing and implementing the government’s FCPA enforcement strategy, he was 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 included two-thirds of the top 25 biggest corporate resolutions ever, resulting in approximately $1.9 billion in monetary penalties, and secured convictions of more than two dozen business executives and money launderers. As the head of the FCPA Unit, Mr. Duross oversaw countless voluntary disclosures, decided which matters would be declined, administered DOJ’s FCPA Opinion Release Procedure and was responsible for interviewing, selecting and reviewing the work of 17 independent corporate monitors.”
“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. Working closely with his counterparts at the U.S. Securities and Exchange Commission, Mr. Duross was one of the principal authors 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. The Guide has received wide praise from the business community, compliance and ethics professionals and private practitioners, and has been described as a “landmark document,” an “FCPA hornbook,” and a “must-read for compliance officers.”
“Once dubbed “Mr. FCPA,”
Patrick Stokes (DOJ FCPA Unit Chief 2014 – 2016)
Left the DOJ to join Gibson Dunn. From his law firm bio:
“From 2014 to 2016 he headed the FCPA Unit, managing the DOJ’s FCPA enforcement program and all criminal FCPA matters throughout the United States, covering every significant business sector, and including investigations, trials, and the assessment of corporate anti-corruption compliance programs.”
Cheryl Scarboro (SEC FCPA Unit Chief 2010 (when the position was first formally named) – 2011).
Left the SEC to join Simpson Thacher. From her law firm bio:
“As head of the SEC’s FCPA practice, Cheryl played a role in all of the SEC’s recent major FCPA cases and acted as the SEC liaison with the Department of Justice (DOJ) and regulators around the world. Cheryl led the SEC’s investigation of Siemens, A.G., which resulted in an unprecedented $1.6 billion settlement with the SEC, DOJ and German regulators, the largest settlement to date under the FCPA. She also led investigations that resulted in actions against 15 companies and three individuals charged with making illicit payments to the Iraqi government in order to win contracts under the United Nation’s Oil-for-Food Program. In the FCPA investigation of a Luxembourg-based global steel pipe supplier and manufacturer, Cheryl pioneered the SEC’s first use of a deferred prosecution agreement as a means of resolving the investigation in a manner that recognized the entity’s cooperation.”
Kara Brockmeyer (SEC FCPA Unit Chief 2011 – 2017).
Left the SEC to join Debevoise & Plimpton. From her law firm bio:
“Prior to joining Debevoise in 2017, Ms. Brockmeyer served as the Chief of the SEC Enforcement Division’s Foreign Corrupt Practices Act Unit and directed a nationwide team of attorneys and forensic accountants investigating violations of the FCPA, including anti-bribery, books and records, and internal controls provisions of the federal securities laws.
During her tenure as chief of the unit, she oversaw many of the agency’s largest and most complex FCPA investigations, and under her leadership, the SEC increased its coordination with other countries to reach global settlement resolutions. She was also one of the principal authors of the SEC-DOJ Resource Guide to the Foreign Corrupt Practices Act, which is widely considered the definitive government-issued guide on the FCPA.”
Regarding the general issue of DOJ or SEC FCPA enforcement attorneys leaving the government for lucrative positions with FCPA Inc. to provide defense and compliance services to business organizations subject to the enforcement climate they helped create, I have long proposed 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.
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