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Survey Says

This [1] previous post highlighted survey data collected – anonymously –  from students in my FCPA class [2] at Southern Illinois University School of Law.  A second set of survey responses are set forth below.

(1) FCPA enforcement actions often involve companies that are otherwise viewed as selling the best product or service for the best price.  With such companies, can it truly be said that the alleged improper payments were the sole reason the company secured the contract or other benefit received?  In other words, does a “but for” analysis have a place in arriving at FCPA fine and penalty amounts?

A.  No – the full value of the benefit allegedly received should be the starting point for calculating fine and penalty amounts regardless of the type of company resolving the enforcement action = 56%

B.  Yes – by using the full value of the benefit received, the calculation ignores the fact that the company may have secured the benefit regardless of the alleged improper payments = 44%

(2) Is disgorgement an appropriate remedy when the SEC charges only FCPA books and records and internal controls violations?

A.  Yes = 25%

B.  No = 75%

(3) In an FCPA enforcement action involving both a DOJ and SEC component, the value of the benefit allegedly received by the company from the improper payments is a key factor in determining the criminal fine amount under the advisory Sentencing Guidelines.  The same figure is also likely to comprise the disgorgement amount in an SEC enforcement action.  This is:

A.  Inappropriate “double-dipping” and thus unfair to the company and its shareholders = 88%

B.  Appropriate, this is not “double-dipping” and even if it was it is still appropriate = 12%

(4) Were the “enhanced compliance obligations” imposed on Johnson & Johnson and Pfizer necessary – in light of the other information set forth in the DPAs – or a government required transfer of shareholder wealth to FCPA Inc.?

A.  Necessary = 31%

B.  A government required transfer of shareholder wealth to FCPA Inc. = 69%

(5) Is there a double standard when it comes to enforcement of the FCPA and the U.S. domestic bribery statute (18 USC 201)?  In other words, are corporate interactions with “foreign officials” subject to greater scrutiny and different standards of enforcement than corporate interactions with U.S. officials?

A.  Yes, there is a double standard = 94%

B.  No, there is no double standard = 6%

(6) Are you uncomfortable with “bribery, yet no bribery” cases such as Siemens and BAE where the enforcement agencies allege facts suggesting violations of the FCPA’s anti-bribery provisions, yet neither entity was actually charged with such violations?

A.  Yes = 56%

B.  No = 44%

(7) Since 2008, approximately 75% of corporate DOJ FCPA enforcement actions (and approximately 80% of corporate SEC FCPA enforcement actions) have not (at least yet) resulted in any related enforcement actions against company employees?  This is likely due to:

A.  The quality and legitimacy of the corporate enforcement action that was resolved via an NPA or DPA = 29%

B.  Other factors not calling into question the quality and legitimacy of the corporate enforcement action = 71%

(8) Given the conduct at issue in the respective cases, does the disparity between the sentences of Joel Esquenazi and Carlos Rodriguez (180 months and 84 months), two individuals who tested their innocence, and Albert Stanley and Jeffrey Tesler (30 months and 21 months), two individuals who pled guilty, concern you?

A.  Yes = 79%

B.  No = 21%

If yes, were

A.  Stanley and Tesler sentenced too lightly = 27%

B.  Esquenazi and Rodriguez sentenced too harshly = 73%