As highlighted in this post, earlier this week Acting Assistant Attorney General Nicole Argentieri gave an FCPA speech in which she stated, among other things, as follows.
“Our corporate enforcement policies encourage companies to voluntarily self-disclose misconduct and cooperate for good reason: It allows us to build stronger cases against culpable individuals more quickly. As searching as our investigations may be, there are some cases that we may never learn about absent a company’s voluntary self-disclosure. And we require those disclosures to be timely so we can preserve evidence more easily, carry out our own investigation into wrongful conduct, interview witnesses before memories fade, and prosecute individuals or other entities before the expiration of the statute of limitations.”
DOJ officials have been saying the same thing for years.
But, let’s analyze this for a minute.
Since April 2016, the DOJ has self-identified 18 corporate matters as being resolved pursuant to / or consistent with its corporate enforcement policies encouraging voluntary disclosure:
- Nortek
- Akamai Technologies
- Johnson Controls
- HMT LLC
- NCH Corp.
- Linde North America
- CDM Smith
- Dun & Bradstreet
- Guralp Systems
- Insurance Corporation of Barbados
- Polycom
- Cognizant Technology Solutions
- Quad Graphics
- World Acceptance Corp.
- Jardine Lloyd Thompson Group Holding
- Safran
- Corsa Coal
- Lifecore Biomedical.
Just 2 of the 18 instances (approximately 10%) have involved an FCPA prosecution of an individual (and it is interesting to note that in those instances the individuals (Steven Schwartz and Gordon Coburn both associated with Cognizant and Charles Hobson associated with Corsa Coal) are advancing to trial. (Note: one individual associated with Corsa Coal – Frederick Cushmore Jr – has pleaded guilty).
In short, the DOJ can say until the cows come home that a primary goal of its voluntary disclosure policies is facilitate the prosecution of individuals. However, there is now over seven years of data to suggest this policy goal has largely failed.
