Previously, we introduced you to this topic and provided updates about the positive international trends in anti-corruption efforts, bribery, and the Organization for Economic Cooperation and Development (OECD). Today, we continue our coverage with information about the U.S. policy of targeting individuals in corporate corruption investigations, and the value of corporate surrender and penance.
An increasing focus on individuals in corporate corruption investigations?
Traditionally, enforcement actions involving the U.S. Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws have focused on significant, multi-million (sometimes billion) dollar sanctions against large multi-national corporations. But the prosecution of culpable individuals and the prospect of federal prison sentences have also been important in cases involving egregious criminal conduct by identifiable corporate representatives.
In 2015, the U.S. Department of Justice (DOJ) suddenly, specifically, and powerfully articulated a new policy strengthening the focus on prosecution of individuals, both criminally and civilly. This policy change, announced by then-Deputy Attorney General Sally Yates, took place during President Obama's administration, which ended in 2016.
Many speculated that the Trump administration would bring a shift in approach and priorities. However, the 2015 policy has not been repudiated, superseded, or significantly changed over the last four years. In 2018, then-Deputy Attorney General Rod Rosenstein emphasized the DOJ's continued focus on prosecuting individuals responsible for FCPA violations, noting that "the most effective deterrent to corporate criminal misconduct is identifying and punishing the people who committed the crimes."3
Under the current presidential administration, the only notable revision to the DOJ's 2015 policy has been to provide more flexibility in awarding credit to individuals who cooperate with authorities in investigations. Yet regardless of the stated DOJ policy, the reality remains that the majority of actual investigations and sanctions are levied against corporations, not their employees, except in the cases of provably egregious and destructive conduct by readily-identifiable individuals in the corporate constellation. 4, 5
The value of corporate surrender and penance: an increasing and pragmatic trend of incentivizing self-reporting, cooperation and remediation by offending companies.
Another continuing trend in the DOJ is to reward corporate compliance as well as cooperation following infractions. Compliance mitigates risk, making companies less likely to encounter unanticipated costs from protracted investigations and penalties.6 When a company establishes a culture of compliance and integrity, it attracts better investors, employees, and customers.7
In determining whether to prosecute the corporation for an alleged violation of the FCPA or other anti-corruption laws, the DOJ will consider a number of factors, including whether the company:
- Made a voluntary self-disclosure to authorities.
- Provided full, complete, and timely cooperation with investigators.
- Mitigated and remediated where possible and appropriate.8
On November 29, 2017, then-Deputy Attorney General Rod Rosenstein announced the formal adoption of a new "FCPA Corporate Enforcement Policy." It states that when a company following an offense satisfies the standards of voluntary self-disclosure, full cooperation, and timely and appropriate remediation, there will be a presumption that the DOJ will resolve the company's case through a declination.9
Other countries are also recognizing the value of self-disclosure and cooperation. Notably, both China and Italy have enacted laws and policies that incentivize self-reporting and acceptance of responsibility. 10, 11
In a later post, we will cover whistleblowers, international corruption ratings, and the importance of compliance in mergers and acquisitions. Please subscribe or check back here for updates on these emerging developments.
1 Attorney with the U.S. law firm of Butler Snow LLP, New Orleans, Louisiana office; previously (2013-2016) Assistant Dean for Experiential Learning, School of Law, Tulane University, New Orleans, Louisiana, USA.
2 Attorney with the U.S. law firm of Butler Snow LLP, Ridgeland, Mississippi office
3 "Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the American Conference Institute's 35th International Conference on the Foreign Corrupt Practices Act," Nov. 29, 2018, available at https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-american-conference-institute-0
4 Trace International, "Global Enforcement Report 2018" p.6, https://cdn2.hubspot.net/hubfs/5002429/Promotional%20Materials/Global%20Enforcement%20Report%20(GER)/TRACE%20Global%20Enforcement%20Report%202018.pdf.
5 "A focus on DOJ Individual Actions," FCPA Professor, 16 January 2019, available at http://fcpaprofessor.com/focus-doj-individual-actions-3/.
6 "Deputy Attorney General Rod J. Rosenstein Delivers Keynote Address on FCPA Enforcement Developments," 7 March 2019, available at https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-keynote-address-fcpa-enforcement
8 Justice Manual, Department of Justice, available at https://www.justice.gov/jm/jm-9-47000-foreign-corrupt-practices-act-1977.
9 "Deputy Attorney General Rosenstein Delivers Remarks at the 34th International Conference on the Foreign Corrupt Practice Act," 29 Nov. 2017, available at https://www.justice.gov/opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-34th-international-conference-foreign.
10 Eric Carlson and Nicole Ma, "China creates more anti-bribery prosecution tools," FCPA Blog, 14 Nov. 2018, available at http://www.fcpablog.com/blog/2018/11/14/china-creates-more-anti-bribery-prosecution-tools.html.
11 Hogan Lovells, "Global Bribery and Corruption Outlook 2019, Europe: an overview of recent changes," https://bac.hoganlovellsabc.com/the-global-outlook/europe.
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