Archive for the ‘DOJ’ Category

If The DOJ Was A Business Organization …

Tuesday, March 18th, 2014

If the Department of Justice was a business organization and subject to the same legal principles its uses to prosecute business organizations, it would constantly be under scrutiny and the subject of numerous enforcement actions.

Why?

As highlighted in this recent report by the Project on Government Oversight (“POGO”) titled “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards:”

“An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.”

[...]

“From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions … In the majority of the matters – more than 400 – OPR categorized the violations as being at the more severe end of the scale:  recklessness or intentional misconduct, as distinct from error or poor judgment.”

As highlighted in the POGO report:

“[T]he Justice Department does not make public the names of attorneys who acted improperly ….  The result:  the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.”

Although not specifically discussed in the POGO report, Foreign Corrupt Practices Act enforcement actions have seen instances of prosecutorial misconduct.  For instance, as highlighted in this post, in the DOJ’s enforcement action against Lindsey Manufacturing and two of its executives, the judge in dismissing the case, stated that the instances of misconduct were “so varied, and occurr[ed] over so lengthy a period … that they add up to an unusual and extreme picture of a prosecution gone badly awry.”  In the failed Africa Sting case, the judge in dismissing the cases, stated that certain of the DOJ’s conduct had “no place in a federal courtroom.”  (See here).

The DOJ’s Principles of Prosecution of Business Organizations state, among the factors prosecutors should consider in deciding whether – and how – to charge a business organization as follows.

“Among the factors prosecutors should consider and weigh are whether the corporation appropriately disciplined wrongdoers, once those employees are identified by the corporation as culpable for the misconduct.”

Against this backdrop, the POGO report states that several “examples of misconduct” within the DOJ often result in lenient sanctions such as a 10, 14 or 30 day suspensions.

Obviously, the DOJ is not a business organization.

However, as a matter of principle should not the prosecutor / regulator and the prosecuted / regulated be held to the same general standards?

For instance, assume two organizations – A &B.

Organization A has tens of thousands of employees spread across the globe. Its employees are trained on the legal rules and requirements relevant to their jobs. Yet, despite the organization’s best training efforts and its committment to compliance and ethics, certain employees fail to conduct themselves according to the training and thus violate the law.  Organization A, as an entity will be held accountable, the organization will be forced – based on the isolated employee’s conduct – to conduct a thorough review of its entire operations, and will likely have a compliance monitor imposed on it.

Organization B, compared to Organization A, is substantially smaller and the vast majority of its employees are located in the United States.  Its employees are trained on the legal rules and requirements relevant to their jobs. Yet, despite the organization’s best training efforts and its committment to compliance and ethics, certain employees fail to conduct themselves according to the training and thus violate the law or relevant rules.  Organization B, as an entity will not be held accountable, the organization will not be forced – based on the isolated employee’s conduct – to conduct a thorough review of its entire operations, and will not have a compliance monitor imposed on it.

Organization A of course is a typical business organization doing business in the global marketplace.

Organization B of course is the DOJ.

Why should there be a difference?

As noted in the POGO report, “high-level DOJ officials have said in the past that given the context – tens of thousands of its attorneys working on tens of thousands of cases each year – the amount of misconduct is small.”  (See here).

Could not the same be said of a typical multinational business organization doing business in the global marketplace?

For previous posts touching upon the same topics as above, see “If the SEC Was An Issuer …” (nothing that if the SEC was an issuer, it would have some serious FCPA books and records and internal control issues to deal with as a result of a GAO report) and “Should There be A Difference.”

Congress Remains Interested In FCPA Issues

Wednesday, February 26th, 2014

Foreign Corrupt Practices reform may not be the hot issue it was circa 2011 (political posturing by the DOJ in connection with the FCPA Guidance as well as certain headlines caused the issue to simmer), but Congress remains interested in FCPA issues.

For instance, in connection with a recent confirmation hearing for Leslie Caldwell to be the DOJ’s Assistant Attorney General of the Criminal Division, Senator Charles Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, asked Caldwell several FCPA-related questions for the record.

Caldwell punted on every question (perhaps not surprising given that Caldwell is not currently at the DOJ), but the questions posed nevertheless highlight specific FCPA issues on the minds of certain members of Congress.

Set forth in full below are the FCPA-related questions by Senator Grassley and Caldwell’s responses.

*****

“I recently asked Attorney General Holder these questions and have not yet received response.  As the FCPA falls within the Criminal Division, would you please respond to the following questions.

What are the Department’s current enforcement priorities under the FCPA?

Answer:  I am not in the Department; therefore, I am not in a position to address this question.  If I am confirmed as the Assistant Attorney General of the Criminal Division, I assure you that I will be vigilant in pursuing cases under the FCPA.

What particular industries, markets or practices is the Department focusing on, and why?

Answer:  I am not in the Department; therefore, I am not in a position to address this question.  As noted above, if I am confirmed as the Assistant Attorney General of the Criminal Division, I assure you that I will be vigilant in pursuing cases under the FCPA.

What proportion of the Department’s enforcement activity during 2013 involved non-U.S. companies?

Answer:  I am not in the Department; therefore, I am not in a position to address this question.  If I am confirmed as the Assistant Attorney General of the Criminal Division, I assure you that I will be vigilant in pursuing cases against U.S. and non-U.S. companies that violate the FCPA.

Has the Department seen a recent increase in whistleblower claims of FCPA violations?  If so, to what would you attribute that?  How has the Department responded?

Answer:  I am not in the Department; therefore, I am not in a position to address these questions.

Although the Department does not publicize each particular instance in which it declines prosecution despite evidence of an FCPA violation, what characterized the Department’s declinations during 2013?  Did the number increase from 2012?  What factors were most important in leading the Department to decline prosecution?

Answer:  I am not in the Department; therefore, I am not in a position to address these questions.  While I have not been privy to the internal deliberations surrounding the Department’s declination decisions, if confirmed as the Assistant Attorney General of the Criminal Division, I assure you that declination decisions will be based on the law and the evidence presented.

In November 2012, the Department and SEC issued the FCPA ”Resource Guide,” which reflected guidance from your agencies regarding the interpretation and enforcement of the FCPA.  Does the Department anticipate updating, supplementing or amending the “Resource Guide” in the foreseeable future?

Answer:  I am not in the Department; therefore, I am not in a position to address this question.

In 2013, the Department issued only one Opinion Release concerning the FCPA.  Does the Department consider the “Resource Guide” a substitute for its opinion release program?

Answer:  I am not in the Department; therefore, I am not in a position to address this question.

Further To The DOJ’s Unique Centralized FCPA Enforcement Policy

Wednesday, February 19th, 2014

One reason I have argued, as a matter of policy (see here and here for instance), for greater post-government employment restrictions on DOJ Foreign Corrupt Practices Act enforcement attorneys with supervisory and discretionary authority is due to the unique policies which guide DOJ enforcement action.

This 2013 post highlighted the DOJ’s unique centralized FCPA enforcement policy.  The post included statements from: (i) the then DOJ Deputy Chief of Staff for the Criminal Division noting that the DOJ’s centralized enforcement policy “distinguishes FCPA prosecutions from most other kinds of federal criminal cases; and (2) the former DOJ Assistant Chief for FCPA enforcement who rightly observed that “the FCPA has been recognized and treated as different by the U.S. government” in that the FCPA ”is one of just a few, select statutes to be prosecuted centrally from one DOJ office.”

The practical realities of the DOJ’s unique centralized FCPA enforcement policy are best highlighted by the new law firm biography of the DOJ’s recently departed FCPA Unit Chief.  In pertinent part, the biography states:

“[Former Unit Chief] most recently served as a Deputy Chief in the Fraud Section in the Criminal Division of the U.S. Department of Justice, where he led the Foreign Corrupt Practices Act (FCPA) Unit and was in charge of all of the DOJ’s FCPA  investigations, prosecutions and resolutions in the United States. Internationally recognized for his leading role in developing and implementing  the government’s FCPA enforcement strategy, he was widely credited with developing the current enforcement regime and recruiting and leading a talented team of prosecutors who have brought some of the most important FCPA cases in the statute’s 36-year history.

[...]

As the head of the FCPA Unit, [former Unit Chief]  oversaw countless voluntary disclosures, decided which matters would be declined, administered DOJ’s FCPA Opinion Release Procedures and was responsible for interviewing, selecting and  reviewing the work of seventeen independent corporate monitors.

[...]

While in the Fraud Section, [former Unit Chief] led the development of a deferred prosecution agreement (DPA) template for FCPA cases, which formed the basis for a DPA template later adopted for use by the entire Criminal Division, and he also led the effort to update and restructure the enhanced compliance components of DPAs in FCPA cases.”

The DOJ’s unique centralized FCPA enforcement policy warrants another special policy.

And that is, a prohibition on DOJ (and SEC) FCPA enforcement attorneys with supervisory and discretionary authority from providing FCPA defense or compliance services for five years upon leaving government service.

*****

See here and here for other recent posts concerning the departure of the DOJ’s FCPA Unit Chief.

A More Complete Picture Of Duross’s Tenure As DOJ FCPA Unit Chief

Wednesday, January 29th, 2014

Yesterday’s post highlighted how Chuck Duross (the DOJ’s FCPA Unit Chief) became the latest in a long line of DOJ and SEC FCPA enforcement attorneys to leave government service for FCPA Inc. to provide defense and compliance services to business organizations subject to the enforcement climate they helped create.  The concerns raised in the prior post were policy issues relevant to the typical career path of DOJ and SEC enforcement attorneys.

This post uses the news of Duross’s departure to highlight additional factual information concerning FCPA enforcement during his tenure.  As FCPA Unit Chief, Duross was a public figure and one that publicly welcomed scrutiny and accountability.  This post does nothing more than provide the public with additional facts and information concerning FCPA enforcement during Duross’s tenure beyond the press release issued by his future employer Morrison & Foerster (“MoFo”).

In this way, readers can analyze for themselves Duross’s tenure as FCPA Unit Chief – and more broadly – various policy issues relevant to DOJ FCPA enforcement including how the DOJ’s FCPA enforcement program is often publicly portrayed.

During his tenure as FCPA Unit Chief, I had the pleasure to meet Chuck several times.  He was helpful to me in obtaining access to certain original source documents and we engaged several times over e-mail and a few times by phone.  Moreover, I will forever be grateful to him for participating in an FCPA conference in March 2012 I helped organize at Ohio State University Moritz College of Law (at the time, the most comprehensive FCPA symposium ever held at a law school).

Throughout his tenure as FCPA Unit Chief, Duross appeared uneasy as to the public scrutiny associated with his position and the DOJ’s FCPA enforcement program more broadly.  Earlier in his tenure, I chaired the World Bribery & Corruption Compliance Forum in London during which Duross stated (see here for the prior post) that he took the FCPA Unit Chief job with a bit of “trepidation” given that he had big shoes to fill (he made specific praise of prior FCPA Chiefs Peter Clark and Mark Mendelsohn) and given that each new case is followed more closely than the last.  More recently, in September 2013, as noted in this prior post, Duross struck a similar theme when he stated that one of his biggest surprises upon becoming FCPA Unit chief was realizing how the unit “operates under a microscope” which highlighted, in his words, the need for his unit “to have its A game” at all times.

To his credit, Duross publicly welcomed scrutiny of the FCPA Unit.  For instance, at the September 2013 event, Duross indicated that “we should be held accountable for what we do – good and bad.”

This post does just that as the MoFo press release announcing the hiring of Duross paints an incomplete picture of FCPA enforcement during his tenure as FCPA Unit Chief.

This post does not suggest or imply that everything that occured in connection with DOJ FCPA enforcement since April 2010 was the direct result of Duross’s decisions or conduct. 

Yet, the same could be said regarding the FCPA statistics touted in the MoFo release. (“Under his leadership, the FCPA Unit resolved more than 40 corporate cases, which include about two-thirds of the top 25 biggest corporate resolutions ever.  Those matters resulted in approximately $1.9 billion in monetary penalties and the conviction of more than two dozen business executives and money launderers.”)  Many of these enforcement actions, including several of the largest ones from a settlement amount perspective, were on the DOJ’s docket long before Duross assumed leadership of the FCPA Unit in April 2010.

Perhaps the most notable event of Duross’s tenure as FCPA Unit was publication of the FCPA Guidance in November 2012.

However, far from a pro-active DOJ effort to “make FCPA enforcement more transparent and compliance with the statute more understandable to the business community” (as stated in the MoFo release), the timing of the Guidance appeared to be a DOJ attempt to forestall introduction of an actual FCPA reform bill.

The following chronology of events is relevant as highlighted in my article “Grading the FCPA Guidance.”  After the November 2010 Senate FCPA hearing, FCPA reform gained steam.  After the Senate hearing, Senator Amy Klobuchar (D-Minn.) asked the DOJ, ‘‘do you believe companies could comply with more certainty with the FCPA if they were provided with more generally applicable guidance from the Department in regards to situations covered by the FCPA that are not clear cut or fall into gray areas?’’  The DOJ response was that it “believes it provides clear guidance with respect to FCPA enforcement through a variety of means,’’ and it then listed the same general categories of information the OECD identified in 2002 as being deficient.”  FCPA reform gained further steam as a result of the June 2011 House FCPA hearing which evidenced bipartisan support for certain aspects of FCPA reform.  Against this backdrop, and only then, did Assistant Attorney General Lanny Breuer announce in November 2011 that the DOJ intended to issue FCPA Guidance in 2012.  Those on Capital Hill who were inclined to introduce an FCPA reform bill said they would await DOJ’s FCPA guidance before introducing such a bill.  It took a year for the DOJ and SEC to release the FCPA Guidance and its release was shortly after the November presidential election and during a lame duck Congress.

Regardless of the motivations of the DOJ (and SEC) in releasing the FCPA Guidance when they did, the related issue is the Guidance itself.

In the MoFo release, Paul Friedman, co-chair of the firm’s FCPA & Anti-Corruption Practice, calls the Guidance “groundbreaking” and “authoritative” and states that it “has proven invaluable to global companies and practitioners.”  As noted in this prior post (summarizing nearly 50 law firm and practitioner views on the Guidance), the Guidance has been perceived much differently than portrayed in the MoFo release.  For instance, Steven Tyrrell  (the former chief of the DOJ fraud section) called the Guidance “more of a scrapbook of past DOJ and SEC successes than a guide book for companies who care about playing by the rules.”

Perhaps more to the point, Duross’s future law firm had a different take as to the Guidance it termed “groundbreaking” in its recent release.  Indeed, MoFo previously called the Guidance “not groundbreaking.”  In this November 2012 Client Alert, Friedman and others state, in pertinent part:

“the guidance is not a panacea for the difficult issues that global companies navigate on a daily basis …”

“the guidance does not deliver any of the fundamental reform that the business community has been seeking, likely setting the stage for further attempts to secure statutory reform from Congress”

“[as to "foreign official" issues discussed in the Guidance] it provides no meaningful relief from the fact-specific ambiguities presented in real life.”

“[as to the standard for corporate liability v. individual liability in the Guidance] what the regulators see as the difference between “willful” and “corrupt intent” goes unsaid.”

“The [FCPA Guidance] is not groundbreaking. There is no sign of the regulators retreating from their expansive views of liability under the FCPA.”

Guidance aside, Duross’s departure from the DOJ once again raises the broader point –  how does the DOJ actually define success in its FCPA enforcement program?   (For instance, see recent statements here and here from Acting Assistant Attorney General Mythili Raman “our stellar FCPA unit continues to go gangbusters” and “our recent string of successful prosecutions of corporate executives is worth highlighting.”)

While the DOJ has had “success” in exercising its leverage and securing large FCPA settlements against risk-averse corporations through resolution vehicles not subjected to any meaningful judicial scrutiny, when put to its burdens of proof in the context of an adversarial system, the DOJ has had substantially less success. In a legal system founded on the rule of law, this later form of success is more meaningful than the former.

For instance, as noted in this recent post, SEC Chairman Mary Jo White recently stated that trials are the “crown jewel of our system of justice” as they “create public accountability for both defendants and the government through the public airing of charges and evidence.”  As White stated, “trials allow for more thoughtful and nuanced interpretations of the law in a way that settlements and summary judgments cannot.”

To his credit, Duross recognized the importance of trials in terms of the FCPA Unit’s overall legitimacy and credibility.  As noted in this September 2010 post, Duross stated that the “ability to try lengthy and complex trials” is critical to the FCPA Unit’s success and that the Unit must continue to be willing to try cases and be put to its burden.

Duross’s FCPA Unit was put to its burden several times during his tenure and the results were often DOJ failures.

Again, this post does not suggest or imply that everything that occured with DOJ FCPA enforcement since April 2010 was the direct result of Duross’s decisions or conduct. 

Nevertheless, it is a fact that the following things occurred while Duross headed the DOJ’s FCPA Unit.

The DOJ’s Africa Sting cases ended in February 2012 with Judge Richard Leon granting the DOJ’s motion for dismissal and stating as follows (see here for the prior post).

“This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement. Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case. Funny, isn’t it, what sells newspapers? The good news, however, is that for these defendants, agents, prosecutors, defense counsel and the court we can get on with our professional and personal lives without the constant strain and burden of three to four more eight-week trials hanging over our heads. I for one hope this very long, and I’m sure very expensive, ordeal will be a true learning experience for both the department and the FBI as they regroup to investigate and prosecute FCPA cases against individuals in the future. Two years ago, at the very outset of this case, I expressed more than my fair share of concerns on the record regarding the way this case has been charged and was being prosecuted. Later, during the two trials that I presided over, I specifically commented again on the record regarding the government’s very, very aggressive conspiracy theory that was pushing its already generous elasticity to its outer limits. Of course, in the second trial that elastic snapped in the absence of the necessary evidence to sustain it. In addition, in that same trial, I expressed on a number of occasions my concerns regarding the way this case had been investigated and was conducted especially vis-a-vis the handling of Mr. Bistrong. I even had an occasion, sadly, to chastise the government in a situation where the government’s handling of the discovery process constituted sharp practices that have no place in a federal courtroom. Notwithstanding all of this water over the dam, and there has been a lot of water, I’m happy to see and I applaud the department for having the wisdom and courage of its convictions to face up to the limitations of its case as revealed in the past 26 weeks of trial and the courage to do the right thing under the circumstances. Having served at the higher levels of the department, I know that that was not an easy decision. They never are, when so much has been invested, and the agents and the prosecutors are so convinced of the righteousness of their position. I for one however am confident this will be in the end a positive, if not painful, lesson that results in better prosecutions of individuals in the future under the FCPA. As for the defendants, I hope the healing process is a swift one and that they get back to their normal lives in the very near future. Finally, I would be remiss if I did not comment on the tireless and spirited effort by the defense counsel from all over the country who came here to try these very lengthy and complicated cases under difficult circumstances and some even pro bono. Their hard work and effective advocacy are a testament to how strong our criminal defense bar is nationwide. And so without further adieu I grant the government’s motion to dismiss. The defendants are excused.”

In a recent interview, Duross stated as follows regarding the Africa Sting case – “I still believe it was a better case than most people thought.”  This is not how the jury foreman in one of the Africa Sting trials saw it.  In this guest post, the jury foreman stated that ‘‘a number of jurors were troubled by the nature of the FBI sting operation’’ and stated that the underlying view of the jury was that ‘‘the defendants had acted in good faith and the FBI/DOJ in bad faith.”

The jury foreman concluded the FCPA Professor post as follows:

“The government has the option to try [the defendants on which the jury hung] again. As a taxpayer, I sincerely hope they will instead dismiss the charges. The evidence simply does not exist, even if they get their witnesses to behave better under cross, to convict. This is a case that makes one wish that a supermajority was sufficient to acquit. Prolonging this prosecution is a waste of government resources. At some point in the deliberations, I described this sting and prosecution as a quarterback sneak. Although I came to regret that analogy for the frequency with which it was recalled in the jury room, I think it apt. The FBI and DOJ designed a play to get the ball just across the goal line. Unfortunately, in the ensuing pileup, no camera angle shows the ball with clarity and it is anyone’s guess as to whether they scored.”

The DOJ’s enforcement action against Lindsey Manufacturing and its executives Keith Lindsey and Steve Lee ended in December 2011 with Judge Howard Matz dismissing the indictment after finding numerous instances of prosecutorial misconduct and stating as follows (see here for the prior post).

“[The instances of misconduct were so varied and occurred over such a long time]  that they add up to an unusual and extreme picture of a prosecution gone badly awry.  [...] The Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s order, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”

“Dr. Lindsey and Mr. Lee were put through a severe ordeal. Charges were filed against them as a result of a sloppy, incomplete and notably over-zealous investigation, an investigation that was so flawed that the Government’s lawyers tried to prevent inquiry into it. In some instances motives, statements and conduct were attributed to them that were wholly unfounded or were obtained unlawfully . . . [. . .] The financial costs of the investigation and trial were immense, but the emotional drubbing [Lindsey and Lee] absorbed was even worse. As for [Lindsey Manufacturing], the very survival of that small, once highly respected enterprise has been placed in jeopardy.”

The DOJ’s enforcement action against John O’Shea ended in January 2012 when Judge Lynn Hughes granted O’Shea’s motion for acquittal after the DOJ’s case, a case which Duross personally tried (see here).  Judge Hughes stated as follows.

“The problem here is that the principal witness against Mr. O’Shea … knows almost nothing.”

“The government should have been prepared before they brought the charges to the Grand Jury.  [...] You shouldn’t indict people on stuff you can’t prove.”

As FCPA Unit Chief, Duross was a public figure and one that publicly welcomed scrutiny and accountability.  This post provides the public with additional facts and information concerning FCPA enforcement during Duross’s tenure as FCPA Unit Chief so that readers can analyze for themselves Duross’s tenure, as well as more broadly, various policy issues relevant to DOJ FCPA enforcement.

In a recent interview, Duross stated as follows concerning his tenure as FCPA Unit Chief – “I think I had a great run.”

You can decide for yourself.

A Focus On DOJ FCPA Individual Prosecutions

Monday, January 20th, 2014

Some have proclaimed 2013 to be the year of the individual.  (See here and here).

Yes, in 2013 FCPA criminal charges were filed or announced against 12 individuals and this figure was higher than in 2012 and 2011.  Yet at the same time, 0 of the 8 DOJ corporate FCPA enforcement actions in 2013 have resulted (at least yet) in any related charges against company employees.  Going back to 2012, only 1 of the 9 DOJ corporate FCPA enforcement actions (11%) in 2012 have resulted (at least yet) in any related charges against company employees.

Certain individual FCPA enforcement actions filed or announced in 2013 (see here for the individual actions announced in connection with the 2012 BizJet enforcement action and here for the individual action announced in connection with the 2011 Maxwell Technology enforcement action) remind us that there can be a lag time between a corporate FCPA enforcement and any related individual enforcement action.

Nevertheless, the statistics are what they are at the present moment and this post highlights certain facts and figures concerning the DOJ’s prosecution of individuals for FCPA offenses.

Since 2000, the DOJ has charged 123 individuals with FCPA criminal offenses.  The breakdown is as follows.

  • 2000 – 0 individuals
  • 2001 – 8 individuals
  • 2002 – 4 individuals
  • 2003 – 4 individuals
  • 2004 – 2 individuals
  • 2005 – 3 individuals
  • 2006 – 6 individuals
  • 2007 – 7 individuals
  • 2008 – 14 individuals
  • 2009 – 18 individuals
  • 2010 – 33 individuals (including 22 in the Africa Sting case)
  • 2011 – 10 individuals
  • 2012 – 2 individuals
  • 2013 – 12 individuals

An analysis of the numbers reveals some interesting points.

Most of the individuals – 89 (or 72%) were charged since 2008.  Thus, on one level the DOJ is correct when it states that individual prosecutions are a “cornerstone” of its FCPA enforcement strategy and that it has been “vigorous about holding individuals accountable” – at least as measured against the historical average given that between 1978 and 1999, the DOJ charged 38 individuals with FCPA criminal offenses.

Yet on another level, a more meaningful level given that there was much less overall enforcement of the FCPA between 1978 and 1999, the DOJ’s statements about its focus on individuals represents hollow rhetoric as demonstrated by the below figures.

Of the 89 individuals criminally charged with FCPA offenses by the DOJ since 2008:

  • 22 individuals were in the Africa Sting case;
  • 9 individuals (minus the “foreign officials” charged) were in the Haiti Teleco case;
  • 8 individuals were in the Control Components case;
  • 8 individuals were in the Siemens case;
  • 4 individuals were in the Lindsey Manufacturing case;
  • 4 individuals were  in the LatinNode / Hondutel case;
  • 4 individuals were in the Nexus Technologies case;
  • 4 individuals were in the BizJet case; and
  • 4 individuals were associated with Alstom (the company’s FCPA scrutiny is still ongoing).

In other words, 53% of the individuals charged by the DOJ with FCPA criminal offenses since 2008 have been in just four cases and 75% of the individuals charged by the DOJ since 2008 have been in just nine cases.

Considering that there has been 60 corporate DOJ FCPA enforcement actions since 2008, this is a rather remarkable statistic.  Of the 60 corporate DOJ FCPA enforcement actions, 44 (or 73%) have not (at least yet) resulted in any DOJ charges against company employees.

This FCPA specific figure is higher than the general 66% figure calculated by Professor Brandon Garrett and recently profiled in this Wall Street Journal article (“The Justice Department hasn’t charged employees at two-third of nearly 400 companies that have settled criminal investigations or been convicted of crimes in recent years.”)

In short, and as demonstrated by the statistics, DOJ FCPA individual enforcement actions are significantly skewed by just a few enforcement actions and the reality is that 73% of DOJ corporate enforcement actions since 2008 have not (at least yet) resulted in any DOJ charges against company employees.

A very interesting and significant picture emerges when analyzing DOJ individual prosecution data based on whether the corporate entity employing or otherwise involved with the individual charged was a public or private entity.

Of the 89 individuals charged by the DOJ with FCPA criminal offenses since 2008, 61 of the individuals (69%) were employees or otherwise affiliated with private business entities.  This is a striking statistic given that 48 of the 60 corporate DOJ FCPA enforcement actions since 2008 (80%) were against publicly traded corporations.

In the 12 private entity DOJ FCPA enforcement actions since 2008, individuals were charged in connection with 7 of those cases (58%).  In contrast, in the 48 public entity DOJ FCPA enforcement actions since 2008, individuals were charged in connection with 9 of those cases (19%).  In short, and based on the data, a private entity DOJ FCPA enforcement is approximately three times more likely to have a related DOJ FCPA criminal prosecution of an individual than a public entity DOJ FCPA enforcement action.

Are other factors at play when it comes to the fact that 73% of DOJ corporate enforcement actions since 2008 have not (at least yet) resulted in any DOJ charges against company employees?  A future post will highlight a relevant datapoint.

[Notes - the above data was assembled using the "core" approach - see this prior post for an explanation.  The term "public entity"  is not limited to "issuers" under the FCPA, but rather a public entity regardless of which market it shares trade on.  Thus, for instance, JGC Corp. of Japan and Bridgestone are both public entities even though its shares are not traded on a U.S. exchange.]