As highlighted below, the DOJ recently acknowledged, despite prior definitive statements by former Assistant Attorney General Lanny Breuer to the contrary, that “measuring the impact of NPAs and DPAs in deterring the bribery of foreign public officials would be a difficult task, save providing certain anecdotal and other circumstantial evidence.”

As discussed in this previous post, in September 2012 then Assistant Attorney General Lanny Breuer passionately defended the DOJ’s use of NPAs and DPAs.  Among other things, Breuer boldly stated that NPAs and DPAs “have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe” and that the result of DOJ’s frequent use of such agreements “has been, unequivocally, far greater accountability for corporate wrongdoing – and a sea change in corporate compliance efforts.”  Breuer further stated as follows.

“One of the reasons why deferred prosecution agreements are such a powerful tool is that, in many ways, a DPA has the same punitive, deterrent, and rehabilitative effect as a guilty plea:  when a company enters into a DPA with the government, or an NPA for that matter, it almost always must acknowledge wrongdoing, agree to cooperate with the government’s investigation, pay a fine, agree to improve its compliance program, and agree to face prosecution if it fails to satisfy the terms of the agreement.”

Despite Breuer’s rhetoric, the question of whether NPAs and DPAs adequately deter future improper conduct has long been asked.

As noted in this previous post, in 2009, the Government Accountability Office (“GAO”) released a report regarding DOJ’s use of NPAs and DPAs. The GAO Report was not FCPA specific, although it does mention the FCPA as being one area where NPAs and DPAs are frequently used.  The GAO Report stated as follows.

“DOJ cannot evaluate and demonstrate the extent to which DPAs and NPAs—in addition to other tools, such as prosecution—contribute to the department’s efforts to combat corporate crime because it has no measures to assess their effectiveness. Specifically, DOJ intends for these agreements to promote corporate reform; however, DOJ does not have performance measures in place to assess whether this goal has been met.”

The GAO Report concluded as follows.

 “[W]hile DOJ has stated that DPAs and NPAs are useful tools for combating and deterring corporate crime, without performance measures, it will be difficult for DOJ to demonstrate that these agreements are effective at helping the department achieve this goal.

As noted in this previous post, in the 2010 OECD Phase 3 Report of U.S. FCPA enforcement, the evaluators likewise noted that the “actual deterrent effect [of NPAs and DPAs have] not been quantified.”  In the Report, the evaluators sought information about the deterrent effect of DPAs and NPAs” and one of the recommendations in the Report was for the U.S. to “make public any information about the impact of NPAs and DPAs on deterring the bribery of foreign public officials.”

The DOJ recently responded to the OECD’s recommendation in its “Final Follow-Up To Phase 3 Report and Recommendations.”  The DOJ response, dated December 2012, states in full, as to the NPA / DPA issues as follows.

“Scholars have recognized that quantifying deterrence is extremely difficult. This is equally true for the deterrent effect of DPAs and NPAs. Thus, as discussed at the time this recommendation was made, measuring ‘the impact of NPAs and DPAs in deterring the bribery of foreign public officials’ would be a difficult task, save providing certain anecdotal and other circumstantial evidence.

One of the best sources of anecdotal evidence demonstrating that DPAs and NPAs have a deterrent effect comes from the companies themselves. The companies against which DPAs and NPAs have been brought have often undergone dramatic changes. For instance, prior to or following the entry of DPAs or NPAs, many companies have terminated personnel, including senior managers, established new codes of conduct and compliance policies and procedures, pledged not to use third-party agents, withdrawn from bids tainted by corruption, provided new and substantial resources to compliance and audit functions within their organizations, and instituted new training regimes. These companies, through their remediation efforts under DPAs and NPAs, have often fundamentally changed how they conduct business. In addition, just like with individuals on parole or probation, the monitor provisions or self-reporting requirements of DPAs and NPAs are designed to deter future misconduct and, at the same time, ensure that companies meet their obligations. In meetings with board members, chief executive officers, chief financial officers, general counsel, and chief compliance officers, DOJ and SEC have heard directly from these senior leaders about the impact DPAs and NPAs have had on their companies for the better.

Beyond the companies themselves, DOJ and SEC have heard anecdotal stories about the deterrent effect of NPAs and DPAs on other companies and how those resolutions raise awareness of anti-corruption laws. Often those stories come from other corporate leaders who have discussed how their own practices have changed or even whole industries that have changed their behavior for the better. For example, during the course of one investigation, it was revealed that a major multinational corporation’s DPA caused another Fortune 50 company to implement an FCPA compliance program. In addition, following DPAs in different cases, companies have come forward to make voluntary disclosures of similar conduct. Many of our DPAs and NPAs are publicized extensively and scrutinized closely by the business community, the legal profession, and the compliance community, among others. The ‘lessons learned’ from these DPAs and NPAs, for example, help raise awareness of compliance risks and failures. The existence of DPAs and NPAs also encourages companies to voluntarily disclose conduct, by providing meaningful rewards to those companies, which enables DOJ and SEC to ensure further specific and general deterrence.”

Of course, what the DOJ says above as to the deterrent value of NPAs or DPAs would equally apply to actual prosecutions.

But let’s test the following statement made by the DOJ  “One of the best sources of anecdotal evidence demonstrating that DPAs and NPAs have a deterrent effect comes from the companies themselves. The companies against which DPAs and NPAs have been brought have often undergone dramatic changes.”

In 2008, the DOJ announced (here) that Aibel Group Ltd. (Aibel Group) pleaded guilty to violating the antibribery provisions of the FCPA.  As noted in the DOJ release, “Aibel Group admitted that it was not in compliance with a deferred prosecution agreement it had entered into with the Justice Department in February 2007 regarding the same underlying conduct.”  The DOJ release further states as follows.  “This is the third time since July 2004 that entities affiliated with Aibel Group have pleaded guilty to violating the FCPA.”

As this previous Wall Street Journal Corruption Currents post highlighted, Ingersoll-Rand, fresh off its exit of a DPA in 2011, soon disclosed that it found other potential violations of the FCPA.  In a 2011 filing, the company stated as follows.

“We have reported to the DOJ and SEC certain matters which raise potential issues under the FCPA and other applicable anti-corruption laws, including matters which were reported during the past year. We have conducted, and continue to conduct, investigations and have had preliminary discussions with respect to these matters with the SEC and DOJ, which are ongoing.”

So the question remains, do NPAs and DPAs deter?

It turns out that not even the DOJ knows the answer.

*****

Interested in NPA and DPA issues?  On May 3rd, I will be speaking at this event at the National Press Club in Washington, D.C.  hosted by Corporate Crime Reporter.