More on the Yates Memo, scrutiny alerts, survey says, and FCPA reform. It’s all here in the Friday roundup.
More on the Yates Memo
Once again a private company has marketed a public official to drive attendance to its paid event.
Earlier this week, Assistant Attorney General Leslie Caldwell delivered this speech reiterating various aspects of the “Yates Memo.” Caldwell stated:
“[O]ur focus on individuals stems from the reality that corporations act through human beings, and that justice usually requires identifying those responsible for criminal conduct and holding them personally accountable. Prosecuting the corporate entity, and imposing a fine and other impersonal conditions, simply is not enough – in most instances – to fully punish and, more importantly, deter corporate misconduct.”
Regarding the cooperation credit aspects of the “Yates Memo,” Caldwell stated:
“We recognize, however, that a company cannot provide what it does not have. And we understand that some investigations – despite their thoroughness – will not bear fruit. Where a company truly is unable to identify the culpable individuals following an appropriately tailored and thorough investigation, but provides the government with the relevant facts and otherwise assists us in obtaining evidence, the company will be eligible for cooperation credit. We will make efforts to credit, not penalize, diligent investigations. On the flip side, we will carefully scrutinize and test a company’s claims that it could not identify or uncover evidence regarding the culpable individuals, particularly if we are able to do so ourselves.
As I have said before, it is not our intent to outsource our investigation of corporate wrongdoing to companies and their outside advisors. As in the past, we will not sit idle, waiting for a company to conduct or complete its investigation. Regardless of a company’s cooperation, federal agents and prosecutors will conduct thorough investigations. If, through this process, we are able to identify the culpable individuals when the company itself did not do so, as well as evidence that would support the charging and prosecution of those individuals, we will assess whether that evidence truly was unavailable to the company.
We, of course, recognize that we sometimes can obtain evidence that a company cannot. We often can obtain from third parties evidence that is not available to the company. Also, we know that a company may not be able to interview former employees who refuse to cooperate in a company investigation. Those same employees may provide information to us, whether voluntarily or through compulsory process. Likewise, there are times when, for strategic reasons, we may ask that the company stand down from pursing a particular line of inquiry. If so, the company will not be penalized for failing to identify facts subsequently discovered by government investigators.”
Caldwell also answered questions after the speech. It appears that this Q&A was recorded and the same private company put the Q&A behind its paywall.
It’s just plain wrong that a private company is selling the words of public officials. It ought to stop.
As highlighted here, in 2010 as part of the CustomsGate enforcement actions, Transocean resolved a $20.7 million FCPA enforcement action (involving a DOJ and SEC component) concerning alleged conduct in Nigeria.
“Transocean Ltd., the world’s largest offshore rig contractor, is being linked for the first time to the corruption probe of Petroleo Brasileiro SA, the state-owned energy giant at the center of Brazil’s biggest corporate scandal. A former executive at Brazil’s state-run oil company has testified to receiving what he says were payments made by someone claiming to be a Transocean agent in exchange for a rig-operation contract from Petrobras.”
This CBCNews report goes in-depth regarding new allegations in a civil suit concerning SNC-Lavalin. According to the article:
“Top executives for years endorsed bribes and lavish gifts — including a yacht and even prostitutes — to win contracts from Libya’s Gadhafi regime.”
To cement ties, [the complaint] alleges specific SNC executives signed off on or approved numerous favours to help Gadhafi, including:
- providing SNC staff and hiring university professor as tutors;
- helping to obtain a Canadian visa;
- considering appointing Saadi Gadhafi an SNC vice-president;
- officially sponsoring his Italian Serie A professional soccer team.
One of the largest expenses included the purchase of a Palmer Johnson yacht worth $38 million for Saadi Gadhafi “organized and validated by CFO Laramée and approved by the then CEO Lamarre.” Saadi Gadhafi visited Canada in 2008, and SNC Lavalin picked up the bill — more than $2 million.”
KPMG recently conducted a worldwide online survey of corporate risk leaders to find out the strengths and weaknesses of their companies’ programs to combat bribery and corruption. According to the survey responses:
“There is a sharp increase in the proportion of respondents who say they are highly challenged by the issue of Anti-Bribery Compliance (ABC) compared with a survey KPMG conducted four years earlier.
As companies continue to globalize, management of third parties poses the greatest challenge in executing ABC programs.
Despite the difficulty of monitoring their business dealings with third parties, more than one third of the respondents do not formally identify high-risk third parties. More than half of those respondents with right to-audit clauses over third parties have not exercised the right.
ABC considerations are accorded too low a priority by companies preparing to acquire, or merge with, other corporations across borders.
Respondents complain they lack the resources to manage ABC risk.
A top-down risk assessment would help companies set priorities, but executives admit that an ABC risk assessment is one of their companies’ top challenges.
Data analytics is an increasingly important and cost-effective tool to assess ABC controls. Yet only a quarter of respondents use data analysis to identify violations and, of those that do so, less than half continuously monitor data to spot potential violations.”
The U.S. Chamber of Commerce recently released this document outlining its policy priorities. Included in the lengthy document was the following: “work to reform the Foreign Corrupt Practices Act by supporting changes to enforcement practices.”
A good weekend to all.