As highlighted here, nearly two years ago the DOJ released the so-called Yates Memo, technically a policy memo titled “Individual Accountability for Corporate Wrongdoing.”
There was really nothing new in the Yates Memo as it continued the DOJ’s rhetoric about the importance of individual prosecutions. Specifically, the Yates Memo repeated the following DOJ rhetoric:
“One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.”
It was highlighted in the previous post linked above, that this was rhetoric because the reality is that few DOJ corporate enforcement actions result in any related charges against company employees. The previous post noted that in the FCPA context, between 2008-2014 75% of DOJ corporate enforcement actions have not (at least yet) resulted in any DOJ charges against company employees.
Since the Yates Memo was released in September 2015 – in which the DOJ renewed its supposed commitment to individual accountability – the FCPA statistics have actually gotten worse.
In fact, the statistics can’t get any worse.
Since the Yates Memo, there have been 19 corporate FCPA enforcement actions brought by the DOJ and not one has (at least yet) resulted in any DOJ charges against company employees.
Zero. Zilch. Nada.
*****
PTC Entities – no company employees charged by the DOJ
Vimpelcom – no company employees charged by the DOJ
Olympus Latin America – no company employees charged by the DOJ
BK Medical (Analogic) – no company employees charged by the DOJ
LAN / LATAM Airlines – no company employees charged by the DOJ
Och-Ziff – no company employees charged by the DOJ
NCH – no company employees charged by the DOJ
HMT – no company employees charged by the DOJ
Embraer – no company employees charged by the DOJ
JPMorgan – no company employees charged by the DOJ
Odebrecht / Braskem – no company employees charged by the DOJ
Teva Pharmaceutical – no company employees charged by the DOJ
General Cable Corp. – no company employees charged by the DOJ
Zimmer Biomet – no company employees charged by the DOJ
SQM – no company employees charged by the DOJ
Rolls Royce – no company employees charged by the DOJ
Las Vegas Sands – no company employees charged by the DOJ
Linde – no company employees charged by the DOJ
CDM Smith – no company employees charged by the DOJ
In my 2010 testimony at the Senate’s FCPA hearing I talked at great length about the lack of individual FCPA prosecutions in connection with corporate FCPA resolutions and have followed this issue very closely in numerous posts over the years. At the 2010 hearing I offered that “a reason no individuals have been charged in [most corporate FCPA enforcement actions] may have more to do with the quality of the corporate enforcement action than any other factor.”
In “Measuring the Impact on NPAs and DPA’s on FCPA Enforcement” I tested this hypothesis and the numbers speak for themselves.
Prior to NPAs and DPAs being introduced to FCPA enforcement, approximately 85% of corporate FCPA enforcement actions resulted in related individual charges against company employees.
Since NPAs and DPAs were introduced to FCPA enforcement, approximately 80% of corporate FCPA enforcement actions have not resulted in related individual charges against company employees. (The statistic cited in the article was current when the article was published and did not include the 19 corporate FCPA enforcement referenced above).
Sure, NPAs and DPAs have resulted in a higher quantity of FCPA enforcement, yet the quality of that enforcement is often very low.
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