Kudos to Jonathan Rusch (Senior V.P. and Head of Anti-Bribery & Corruption Governance at Wells Fargo) for doing something few in-house counsel would ever think of doing – penning an open letter to the DOJ for how it can do its job better.
Prior to his current position at Wells Fargo, Rusch was previously the Deputy Chief for Strategy and Policy at the DOJ Fraud Section for over 25 years.
In this “Memorandum to the Compliance Counsel, United States Department of Justice” published by the Harvard Business Law Review Online, Rusch begins his 18 page memo to DOJ Compliance Counsel Hui Chen in pertinent part as follows.
“You are charged with two primary duties: (1) providing expert guidance to the Fraud Section prosecutors regarding the prosecution of business entities, including those entities’ current compliance programs; and (2) assisting prosecutors in establishing appropriate benchmarks for corporate compliance. Both of these functions are important for effective anti-corruption enforcement. As an ex post function, the former is of substantial interest to individuals and companies under criminal investigation. As an ex ante function, the latter should be of even greater interest to a vast spectrum of companies, here and abroad. As your Section Chief indicated, you are expected to be “benchmarking with various companies in a variety of different industries to make sure we have realistic expectations . . . and tough-but-fair ones in various industries.”
This Memorandum will not offer guidance to the Department on how to exercise prosecutorial discretion in FCPA investigations—not least because the Yates Memorandum has made clear how substantially the Department has changed its approach to conducting corporate investigations. Rather, it will provide an outline of how you and the Department could perform the ex ante function of benchmarking and guidance. If some of the steps outlined here seem obvious, please consider that elaborating the obvious, along with the subtle, would be beneficial for both the Department and companies in setting clear expectations for corporate compliance programs.”
In short, Rusch requests that the DOJ provide more than just vague generalities and “casual buzzwords” when it comes to FCPA compliance (and compliance in general).
The memo ends with the following zinger regarding the ever-present “luncheon law” nature of the FCPA (see here for the prior post).
“[T]he Department’s willingness to allow its prosecutors to speak and write publicly about corporate compliance issues is commendable. The problem here is not the quality or good intentions of the speakers, but the randomness of the creation of additional fragments of guidance, especially when different officials make different points about compliance at different times. As a result, companies and lawyers must pore over a farrago of data sources, like Roman haruspices poring over the entrails of sacrificial animals, to divine what the Department means to say about corporate compliance. And such divination is no easy matter. Public remarks by Departmental officials of various ranks must be scrutinized and compared with numerous press releases and supporting documents for criminal prosecutions, while exploring the Department’s more general public guidance, ranging from the Fraud Section’s FCPA published opinions to the Antitrust Division’s Business Review Letter process.
None of this implies that Department officials should stop announcing corporate criminal resolutions, providing closed-door feedback to companies under investigation, or writing and speaking about corporate compliance. But the Department and the SEC should also collect their cumulative experience and guidance on corporate compliance into as few places as possible, and periodically update that collection. For foreign bribery and corruption matters, the FCPA Resource Guide has been a substantial step in that direction, but has proved to be too brief in presenting its much-touted hallmarks of compliance. Whether incorporated into a revised FCPA Resource Guide or maintained as a separate public document, your benchmarking efforts should seek to make the information costs for companies as low as possible.”