Have FCPA Settlement Amounts Increased … Just Because?

This post returns to an issue previously highlighted in this prior post –  “FCPA Settlements Have Come a Long Way In a Short Amount of Time.”

Again, the question is posed: have FCPA settlement amounts increased … just because?

Under the advisory Sentencing Guidelines, the following general formula is used to calculate an advisory fine range in an FCPA enforcement action.

• The starting point under the Guidelines is the base offense level relevant to the conduct at issue.
• This base offense level can be increased based on the value of the benefit received from the improper conduct.  This results in a total offense level and a base fine amount under the Guidelines.
• From there, a business organization’s culpability score is calculated based on a number of factors including: the number of employees in the organization; whether high-level personnel were involved in or condoned the improper conduct; prior criminal history; whether the organization had a pre-existing compliance and ethics program; voluntary disclosure; cooperation; and acceptance of responsibility.
• A business organization’s culpability score then yields a multiplier ratio (such as 1.4 to 2.8), that is then applied to the base fine amount, which then yields an advisory fine range.
• The DOJ then selects a number based on that fine range (and often times below the fine range) that the business organization then agrees to pay to resolve its alleged FCPA scrutiny.

Set forth below is a comparison between the DOJ enforcement action against Siemens in 2008 (which set a record for the largest total FCPA settlement of all time $800 million ($450 million DOJ component and a $350 million SEC component)) and the DOJ enforcement action against Alstom in 2014 (the largest DOJ only FCPA settlement of all-time).

As highlighted by the above DOJ calculations, the Siemens enforcement action yielded a much higher sentencing guidelines range compared to the recent Alstom action.

Yet, the recent Alstom action yielded a much higher criminal fine amount.

DOJ criminal fine amounts ought not be influenced by whether there is a related enforcement action by the SEC (which happened in Siemens, but not in Alstom), but even if DOJ criminal fine amounts are so influenced, the fact remains that Alstom was still punished more significantly (compared to the guidelines range) than Siemens even though the conduct at issue was less egregious.

Another variable that could impact DOJ fine amounts is the existence of a foreign law enforcement action and resulting fines and penalties.  Yet, such an occurrence was present in both the Siemens and Alstom actions.

The above comparison between Siemens (2008) and Alstom (2014) once again raises the question of whether FCPA settlement amounts have increased … just because?

Perhaps you have noticed this general trend in other areas as well where billion settlements are seemingly becoming the new norm.

In a 2013 speech SEC Commissioner Daniel Gallagher noted:

“[T]he amounts of the penalties that the SEC imposes against corporations today are eye-popping and likely would have shocked the legislators who voted for the Remedies Act and the Commission that sought penalty authority from Congress.”

As to the 2013 JPMorgan enforcement action ($13 billion), as noted in this Wall Street Journal article, the company’s top lawyer asked at an event “at what point does this [record-setting fines] stop.”  As Professor Peter Henning noted in this New York Times DealBook column regarding the JPMorgan matter:

“A standard part of enforcement actions against companies these days is the multimillion-dollar – or even multibillion-dollar – penalty. What can be perplexing is figuring out how those penalties were determined, and whether they have much if any direct relationship to either the gains realized from the violations or the harm inflicted.”

Indeed, at the same event discussed above, a government official acknowledged that the government’s application of fines in legal settlements “is more art than science.”

Spot-on.

In many cases. even though advisory Sentencing Guidelines ranges are presented, there is little rhyme or reason to how FCPA settlement amounts are calculated. When a NPA is used to resolve an FCPA enforcement action, the ultimate fine amount and how it as calculated is not transparent.  Even with corporate DPAs and plea agreements, there remains little transparency regarding FCPA criminal fine amounts, particularly as to the value of the benefit allegedly received through the improper payment.  The DOJ simply cites a number.

As noted in this prior post, in 2012 the Supreme Court held in Southern Union that any fact that substantially increases a criminal defendant’s fine amount must be provable to a jury beyond a reasonable doubt.  As noted in the prior post however, the Supreme Court’s decision was great in theory, but it is rare for anything connected to a corporate FCPA enforcement action to be provable to a jury beyond a reasonable doubt.

It is only a matter of time before an FCPA settlement amount starts with a “b” as in billion.

If a billion dollar FCPA enforcement action is what the conduct at issue warrants … fine.  But if it is just because, this is a problem and a significant public policy concern as even alleged wrongdoers have due process rights.