July 3rd, 2014

“Friday” Roundup

On the brink of trial, statistics of note, the over-hyped U.K. Bribery Act turns 3, say what?, and for the reading stack.  It’s all here in a special Thursday edition of the Friday roundup.

On The Brink of Trial

This February 2012 post highlighting the SEC’s enforcement action against Mark Jackson and James Ruehlen (a former and current executive of Noble Corp. respectively) asked – “will the SEC be put to its burden of proof.”  Among other things, the post noted that the SEC has never prevailed in an FCPA enforcement action when put to its burden of proof.

With the passage of time, the SEC’s case against the defendants was consistently trimmed as the SEC attempted to meet its burden (see this post as well as here).  Among other things, a portion of the SEC’s claims were dismissed or abandoned on statute of limitations grounds and the trial court judge ruled, in an issue of first impression, that the SEC has the burden of negating the FCPA’s facilitation payments exception.

On the brink of the SEC’s first-ever FCPA trial (trial was scheduled to begin next week), the parties have agreed to settle.

Without admitting or denying the SEC’s allegations, Jackson consented to a final judgment permanently restraining and enjoining him from violating the FCPA’s books and records provisions.  Jackson was represented by, among others, David Krakoff (Buckley Sandler).  In a release, Krakoff stated:

“We are very pleased with today’s settlement.  It resolves allegations that have hung over Mr. Jackson for many years without any admission of liability, without any payment of money and without any restriction on Mr. Jackson’s future employment opportunities.  Mr. Jackson can now move forward with his life and career.”

Without admitting or denying the SEC’s allegations, Ruehlen consented to a final judgment permanently restraining and enjoining him from aiding and abetting FCPA books and records violations.  Ruehlen was represented by, among others, Joseph Warin and Nicola Hanna (Gibson Dunn).  In a release, Warin stated:

“We are very pleased with yesterday’s settlement.  Mr. Ruehlen is an exemplary and dedicated employee who first brought the allegations to light and fully cooperated with the SEC’s investigation.  While we were looking forward to presenting our case to a jury, the settlement of one record-keeping claim – without any admission of liability or wrongdoing, monetary penalty, or restriction on Mr. Ruehlen’s employment – satisfactorily ends the matter and allows Jim to focus his energies on his work for Noble.”

In neither consent is Jackson or Ruehlen required to pay any civil fine.

Score this one as you see fit, but my take is that this case represents yet another SEC failure in an FCPA enforcement action when put to its burden of proof.  As the Second Circuit recently recognized, SEC neither admit nor deny settlements are not about the truth, but pragmatism.

Statistics of Note

EY recently released its 13th annual Global Fraud survey (the results were based on interviews with more than 2,700 executives across 59 countries).  Statistics of note include the following.

“Despite the aggressive enforcement environment, our research suggests that the percentage of companies that have anti-bribery/anticorruption (ABAC) policies has increased by only 1% over the past two years, and a persistent minority has yet to take even the basic steps toward an effective compliance program.  One in five businesses still does not have an ABAC policy.  Less than 50% of respondents have attended ABAC training.  There has been a reduction in the level of reporting on compliance issues to boards.”

“The survey results show that executives in different roles have a differing view of the level of risk.  27% of chief compliance officers (CCOs) believe bribery and corrupt practices happen widely in their country versus 38% of all respondents — so they appear to have a more optimistic view than their colleagues.  18% of sales and marketing executives believe it is common practice to use bribery to win contracts in their sector versus 12% of all respondents — so they appear to have a more pessimistic view than their colleagues.”

“Additionally, the survey results suggest that compliance efforts may not always be targeting the right risks in the most effective way.  Less than a third of businesses are always or very frequently conducting anti-corruption due diligence as part of their mergers and acquisitions process.  45% of organizations are not mitigating risks by introducing a whistleblower hotline.  ABAC training is less likely to occur in jurisdictions where there is a higher perceived risk of bribery. Sales and marketing executives are the least likely of all our respondents to be included in risk assessments — despite being exposed to and aware of significant risks.  ABAC training, for example, is more likely to be attended by executives in mature markets, where corruption is perceived to be lower, than in higher-risk emerging markets. Of the survey population, 58% of respondents in developed markets had received ABAC training, compared with just 40% in emerging markets.”

Consistent with the observation in this recent post, these survey results again ought to prompt questions whether the current approach to enforcement – as well as enforcement policy – are effective.

Bribery Act Turns 3

The U.K. Bribery Act, a massively over-hyped law when it was being proposed and went live, has turned three.  On the day it went live, I offered the following two cents.

“As with any new law, there is likely to be a learning phase for both the enforcement agencies and those subject to the law. That was certainly the case in the U.S. in the years following passage of the FCPA in 1977. Thus, it very well may be the case that there are no enforcement actions for some time (recognizing that it often takes a few years from beginning of an inquiry to resolution of an action). Thus the greatest immediate impact of the Bribery Act is sure to be the compliance ethic it inspires. I expect that the enforcement actions that may develop over time to focus on egregious instances of corporate conduct on which no reasonable minds would disagree. I do not get the sense, based on public comments of the Ministry of Justice and the Serious Fraud Office, that the envelope will be pushed too far in the early years of the Bribery Act.”

Indeed, there has yet to be an “FCPA-like” Bribery Act enforcement action.  This troubles Transparency International – see here.

Say What?

Speaking of the Bribery Act, this is from “The Lawyer” regarding corruption allegations at FIFA and the ability of the U.K. Serious Fraud Office to bring an enforcement action against FIFA sponsors.

“Section 7 [of the U.K. Bribery Act] is entitled “Failure of commercial organisations to prevent bribery”. Its reach is as global as the World Cup. The fact that Fifa is a Zurich-based NGO does not mean it’s offside. Similarly for the sponsors so long as some aspect of their business is carried out in the UK. A single sale of an Adidas football boot via a Visa credit card is sufficient for David Green [Director of the SFO] to apply to the courts for search warrants in order to unleash dawn raids on their UK HQs.”

Regarding the italicized portion … say what?

For the Reading Stack

See here for the always informative Debevoise & Plimpton FCPA Update.  Regarding the Second Circuit’s recent decision in SEC v. Citigroup, the Update states:

“For companies subject to the SEC’s authority to enforce the FCPA, the Second Circuit’s decision in the Citi matter provides some comfort that a corporate resolution requiring judicial approval, once achieved, should be subject to appropriate deference when it comes before a district court for review. At the same time, however, the decision also reinforces the understanding that resolutions achieved by settlement, even if approved by a court, do not constitute legal precedent.”

An interesting read here from the BBC regarding “contemporary business culture” in China.

“Chinese workplaces are just as political as those anywhere else in the world, some would argue more so because the value placed on outward harmony in Chinese culture drives the rivalry underground. [...]  The politics in a multinational’s China operation can be especially insidious when there’s a thin layer of western management attempting to operate according to principles which have limited purchase in the Chinese business culture beneath.”

Aboard the “bribery express” – from Eurasianet.


A Happy Independence Day to U.S. readers and a good weekend to all.

Posted by Mike Koehler at 12:03 am. Post Categories: ChinaFCPA StatisticsJames RuehlenMark JacksonNeither Admit or DenySerious Fraud OfficeU.K. Bribery Act

July 2nd, 2014

Understanding Risk To Reduce FCPA Scrutiny

In order for a business organization to effectively minimize its Foreign Corrupt Practices Act  scrutiny, employees need to understand the risks present in their specific job function.

The best way for this to happen is for business leaders to directly engage with employees and inspire them to spot risk.

This free video (created in collaboration with Emtrain with whom I’ve created a global anti-bribery and corruption training course) has been created to help business leaders accomplish these objectives. Feel free to share the video with clients, in-house counsel and other compliance professionals, and employees.

Posted by Mike Koehler at 12:03 am. Post Categories: ComplianceMultimedia

July 1st, 2014

What You Need To Know From Q2

This post provides a summary of Foreign Corrupt Practices Act enforcement activity and related events from the second quarter of 2014. (See here for a similar post from Q1).

DOJ Enforcement (Corporate)

The DOJ brought one corporate enforcement action in the second quarter.  DOJ recovery is this enforcement action was approximately $77 million.  The enforcement action has not resulted, at least yet, in any individual charges against company employees.

Year-to-date, the DOJ has brought three corporate enforcement actions.  DOJ recovery in these enforcement actions has been approximately $388 million.  At present, none of these enforcement actions have resulted in any individual charges against company employees.

HP Related Entities (April 9th)

See here for the prior post

Charges:  As to HP Russia - (i) conspiracy to violate the FCPA’s anti-bribery provisions and books and records and internal controls provisions; (ii) one count of violating the FCPA’s anti-bribery provisions; (iii) one count of violating the FCPA’s internal controls provisions; and (iv) one count of violating the FCPA’s books and records provisions; As to HP Poland – violation of the FCPA’s books and records and internal controls provisions; As to HP Mexico – not applicable.

Resolution Vehicle:  As to HP Russia, a plea agreement; as to HP Poland a DPA; as to HP Mexico an NPA.

Guidelines Range:  As to HP Russia $87 million to $174 million; as to HP Poland $19.3 million to $38.6 million; as to HP Mexico not specified in the NPA.

Penalty:  As to HP Russia $58.8 million; as to HP Poland $15.5 million; as to HP Mexico $2.5 million.

Disclosure:  The enforcement action appears to have been the result of a previous German and Russian law enforcement investigation (see here for the prior post).

Monitor:  No

Individuals Charged:  No

DOJ Enforcement (Individual)

In the second quarter, the DOJ brought an FCPA and related enforcement action against various individuals in connection with securing Indian mining licenses.  As noted in this post, the following individuals were charged:

  • Dmitry Firtash (a Ukrainian businessman)
  • Andras Knopp (a Hungarian businessman)
  • Suren Gevorgyan (of Ukraine)
  • Gajendra Lal (an Indian national and permanent resident of the U.S.)
  • Periyasamy Sunderalingam (of Sri Lanka)
  • K.V.P. Ramachandra Rao (a Member of the Parliament in India who was an official of the state government of Andra Pradesh and a close advisor to the now-deceased chief minister of the State of Andhra Pradesh, Y.S. Rajasekhara Reddy).

All of the defendants except Rao (the alleged Indian “foreign official”) were charged with, among other charges, conspiracy to violate the FCPA’s anti-bribery provisions.

Also in the second quarter, the DOJ brought additional criminal charges against individuals associated with broker-dealer Direct Access Partners.  As noted in this post, Benito Chinea and Joseph DeMeneses (the Chief Executive Officer and a managing partner, respectively of Direct Access Partners) were criminally charged in connection with alleged improper payments to Maria Gonzalez (V.P. of Finance / Executive Manager of Finance and Funds Administration at Bandes, an alleged Venezuelan state-owned banking entity that acted as the financial agent of the state to finance economic development projects).

Year-to-date, in addition to the above individual enforcement actions, the DOJ also brought criminal charges against three former executives of PetroTiger Ltd., a British Virgin Islands oil and gas company with operations in Colombia and offices in New Jersey, “for their alleged participation in a scheme to pay bribes to foreign government officials in violation of the FCPA, to defraud PetroTiger, and to launder proceeds of those crimes.” (See here for the prior post). The individuals charged were former co-CEOs of PetroTiger Joseph Sigelman and Knut Hammarskjold and former general counsel Gregory Weisman.

SEC Enforcement (Corporate)

The SEC resolved one corporate FCPA enforcement action via an administrative order  in the second quarter.  SEC recovery in this enforcement action was approximately $32 million. The enforcement action has not resulted, at least yet, in any individual charges against company employees.

Year-to-date, the SEC has resolved two corporate enforcement actions, both via administrative orders.  SEC recovery in these enforcement actions has been approximately $193 million.  At present, none of the enforcement actions have resulted in any individual charges against company employees.

HP (April 9th)

See here for the prior post.

Charges:   None.  Administrative cease and desist order finding violations of the FCPA’s books and records and internal control provisions.

Settlement:  $34 million in disgorgement and prejudgment interest (approximately $2.5 million of the disgorgement amount was satisfied by payment of $2.5 million in connection with the HP Mexico DOJ action).

Disclosure:   The enforcement action appears to have been the result of a previous German and Russian law enforcement investigation (see here for the prior post).

Individuals Charged:  No

Related DOJ Enforcement Action:  Yes

SEC Enforcement (Individual)

The SEC did not bring any FCPA charges against individuals in the second quarter.

Year-to-date there have not been any SEC FCPA enforcement actions against individuals.

Other Developments or Items of Interest

As highlighted here, the 11th Circuit issued its long-awaited “foreign official” decision – the first time in FCPA history in which an appellate court addressed the prominent enforcement theory that employees of alleged state-owned or state-controlled entities can be “foreign officials” under the FCPA.  This post highlights the key language, this post captures the current landscape regarding “foreign official” issues, this post aggregates approximately 25 law firm publications regarding the 11th Circuit’s decision, this post offers a perspective on the court’s flawed reasoning, and this post explores the 193 meanings of “foreign official.”

As highlighted here, the 2nd Circuit issued its long-awaited decision regarding Judge Jed Rakoff’s (S.D.N.Y.) refusal to approve the settlement in SEC v. Citigroup.  In pertinent part, the Second Circuit concluded that “there is no basis in the law for the district court to require an admission of liability as a condition for approving a settlement between the parties. The decision to require an admission of liability before entering into a consent decree rests squarely with the S.E.C.”  According to the Second Circuit, the SEC does not need to establish “the truth” of the allegations against a settling party as a condition for approving consent decrees because, in the words of the Court, “trials are primarily about truth” whereas “consent decrees are primarily about pragmatism.”

As highlighted here, in a campaign finance case a majority of the Supreme Court adopted a narrow view of corruption and stated that “ingratiation and access are not corruption.”

Posted by Mike Koehler at 12:04 am. Post Categories: Year in Review 2014

June 30th, 2014

Hercules Offshore: A Case Study In Risk Aversion

In passing the Foreign Corrupt Practices Act, Congress (and the Executive branch) accepted the fact that U.S. companies would lose out on certain business by complying with the FCPA’s provisions.  For instance, as highlighted in “The Story of the Foreign Corrupt Practices Act,” Treasury Secretary Michael Blumenthal stated during Congressional hearings:

“To the very, very small extent a particular company may lose a particular contract because it refuses to engage in [improper payments], I would be willing to say, all right, we will be at a slight competitive disadvantage and we will all sleep the better for it.”

Losing business because of a refusal to make improper payments is one thing, losing business because of risk aversion is quite another.

This post concerns Hercules Offshore and how its FCPA risk aversion resulted in the company abandoning a $92 million contract in Angola, which when disclosed, resulted in the company’s stock falling approximately 11% (see here).

In this recent SEC filing, Hercules disclosed:

“Due to the failure of Sonangol [an entity the DOJ/SEC have alleged in past FCPA enforcement actions is the state-owned and controlled oil and gas company of Angola] officials to accept a local representative that meets the Company’s international legal compliance standards, the Company has experienced delays in obtaining Angolan visas for required crewmembers and delays in importing required parts and equipment into Angola to support operations under the drilling contract for the Hercules 267 (the “Contract”). As a result of these delays, the Contract will be terminated. Pursuant to an agreement with the customer, the Company will not have any contractual exposure to the customer as a result of the Contract termination.Sonangol has failed to accept any of three different local representatives proposed by the Company who meet our legal compliance standards, notwithstanding the legal and technical sufficiency of our proposals. The Company understands that working with a local representative is required under the Contract, and the transition to a representative meeting our compliance standards is a necessary condition for the Company to continue to perform its obligations under the Contract in Angola.

As previously disclosed in our fleet status report on May 20, 2014, the Company recently moved the Hercules 267 to Gabon from Angola. The Hercules 267 has been on zero dayrate since late April 2014, and final cessation of the rig’s operations under the Contract will reduce our current estimated future backlog by an estimated $91.8 million, until we are able to obtain a contract for the rig in another location.

Also as a result of these circumstances, the Company will voluntarily forgo a three-year contract award it previously received in Angola for the Hercules Triumph.”

Regarding the above circumstances, Hercules Offshore CEO and President John Rynd stated at the recent Global Hunter Securities 100 Energy Conference:
“And I guess compliance — if you have followed us, you know what — we pulled out of Angola last Friday. Tough decision for us. We could not get comfortable, and then the agents that we sent to Sonangol that had gone through our vetting process they would not accept. So we walked away from 2 1/2 years at $110,000 a day and three years at north of $200,000 a day on two assets, but it’s the right thing to do.We’re not going to get embroiled in an FCPA investigation. So it was a tough decision, but it was the right decision, and a decision we will make every time around the world every day.”
As with most root causes of FCPA risk and scrutiny, Hercules Offshore encountered various trade distortions and barriers in attempting to conduct business in Angola.  In this case, it was Angolan bureaucracy and requirements that the company work with a local representative (a circumstance that was, in part, the root cause of the 2013 FCPA enforcement action against Weatherford International – see here for the prior post).

The FCPA risk aversion of Hercules Offshore was no doubt heightened given that the company was the subject of FCPA scrutiny in 2011-2012 (see here).

Regardless, does anyone benefit from Hercules Offshore’s risk aversion?

Clearly, the company’s shareholders did not benefit, to the contrary shareholder value has been surrendered because of risk aversion.

The Angolan government (and by extension its people if one follows it down to that level) had the opportunity to have a local representative involved in a contract that was vetted through the compliance standards of a respected U.S. company.  Seemingly no benefits there because of Hercules Offshore’s risk aversion.

In the eyes of the DOJ and SEC, is Hercules Offshore’s risk aversion a success that ought to be celebrated?  Is there something the DOJ or SEC can do in instances such as the above rather just enforce the FCPA?  Was Hercules Offshore’s risk aversion a prime candidate for submission under the FCPA’s Opinion Procedure Release program?  If so, how would the DOJ have analyzed the situation?  Perhaps the DOJ did analyze the situation, but because of the de facto “mulligan rule,” there was no Opinion Procedure release.

This new era of FCPA enforcement has many effects besides “hard” enforcement.  Often times, the FCPA’s greatest impact is “soft” enforcement and the reluctance of risk averse companies to encounter potential FCPA risk.

Hercules Offshore’s risk aversion is an example of this, yet an example that raises several big picture policy questions.

Posted by Mike Koehler at 12:04 am. Post Categories: AngolaHercules OffshoreRisk AversionRoot CausesTrade Barriers and Distortions

June 27th, 2014

Friday Roundup

Elevate, a surprise verdict? SEC Chair on compliance, self-reporting and cooperation, quotable, and for the reading stack.  It’s all here in the Friday Roundup.

Elevate Your FCPA Knowledge and Practical Skills

Join lawyers and other in-house counsel and compliance professionals from around the country – indeed the world –  already registered for the inaugural FCPA Institute July 16-17th in Milwaukee, Wisconsin.  The FCPA Institute is a unique two-day learning experience ideal for a diverse group of professionals seeking to elevate their FCPA knowledge and practical skills.  FCPA Institute participants will have their knowledge assessed and upon successful completion of a written assessment tool can earn a certificate of completion. In this way, successful completion of the FCPA Institute represents a value-added credential for professional development.

To register see here.

A Surprise Verdict?

As has been widely reported (see here and here for instance) Rebekah Brooks, a former senior News Corporation executive, was found not guilty of various counts (including conspiracy to commit misconduct – in other words bribery) by an English jury earlier this week.

The bribery-related verdict comes as a bit of a surprise given that Brooks – as highlighted in this previous post and as reported by the media:

“[Rebekah Brooks testified that] she authorized payments to public officials in exchange for information on “half a dozen occasions” during her time as a newspaper editor—but did so only in what she said was the public interest. [...]  On the stand, Ms. Brooks, who edited News Corp’s Sun newspaper and its now-closed News of the World sister title, said the payments were made for good reasons, and done so on rare occasions and after careful consideration. “My view at the time was that there had to be an overwhelming public interest to justify payments in the very narrow circumstances of a public official being paid for information directly in line with their jobs,” said Ms. Brooks.”

As to the other defendants – Andy Coulson (a former senior News Corp. editor) and Clive Goodman (a former royal reporter for New Corp.’s defunct News of the World publication) –  the jury failed to reach a verdict on the bribery-related count.

At the beginning of the trials, in this October 2013 post, I observed:

“What happens in these trials concerning the bribery offenses will not determine the outcome of any potential News Corp. FCPA enforcement action.  But you can bet that the DOJ and SEC will be interested in the ultimate outcome.  In short, if there is a judicial finding that Brooks and/or Coulson or other high-level executives in London authorized or otherwise knew of the alleged improper payments, this will likely be a factor in how the DOJ and SEC ultimately resolve any potential enforcement action and how News Corp.’s overall culpability score may be calculated under the advisory Sentencing Guidelines.”

SEC Chair White on Compliance, Self-Reporting and Cooperation

SEC Chair Mary Jo White recently delivered this speech titled “A Few Things Directors Should Know About the SEC.”

Among other topics, White spoke about the importance of compliance, self-reporting and cooperation and relevant portions of the speech are highlighted below.


“Ethics and honesty can become core corporate values when directors and senior executives embrace them.  This includes establishing strong corporate compliance programs focused on regular training of employees, effective and accessible codes of conduct, and procedures that ensure complaints are thoroughly and fairly investigated.  And, it must be obvious to all in your organization that the board and senior management highly value and respect the company’s legal and compliance functions.  Creating a robust compliance culture also means rewarding employees who do the right thing and ensuring that no one at the company is considered above the law.  Ignoring the misconduct of a high performer or a key executive will not cut it.  Compliance simply must be an enterprise-wide effort.”

Self-Reporting and Cooperation

“Even in the best run companies with strong boards, the right tone at the top and robust compliance programs, wrongdoing will almost inevitably occur from time-to-time.  What should you do when that happens?  How should you respond?  What does the SEC expect you to do?  When should a company self-report wrongdoing to the SEC or other authorities?  All of these questions require careful consideration and appropriate action. For tonight, I will focus just on the last one about self-reporting.

If your company has uncovered serious wrongdoing, you will need to decide whether, how and when to report the matter to the SEC.  One immediate question you will have to answer is whether what has been discovered constitutes material information that requires public disclosure.  If the answer is yes, that fact will also invariably dictate an obvious affirmative answer to broader self-reporting to the SEC.

In other situations, you will need to decide whether to call us about a serious, but non-material event – perhaps a rogue employee in a small foreign subsidiary has been bribing a foreign official in violation of the Foreign Corrupt Practices Act (“FCPA”).  You intend to take decisive action against the employee and enhance your FCPA compliance program.  Your disclosure lawyer’s view is that the occurrence does not require public disclosure.  That does not, however, end your inquiry or responsibilities.  Your company still needs to decide whether to self-report to the SEC, and consider what that may mean for the company.

As many of you know, the Commission in the 2001 Seaboard statement on cooperation, explained how self-reporting, cooperation, self-policing, and remediation factor into our decisions when considering enforcement actions.  And, I can tell you from experience that of those four factors, self-reporting is especially important to both the SEC and the Department of Justice.

What are the benefits to your company of self-reporting?  You can read about that in the SEC’s press releases on enforcement actions, which routinely highlight how the quality of a company’s cooperation has affected any resulting enforcement action.  Typically, a company realizes the benefits of cooperation through a reduced penalty, or, at times, no penalty or even not proceeding in an exceptional case.

Not that you should need any extra incentive, but keep in mind that there are also downsides in deciding not to self-report.  If the wrongdoing is not self-reported, the opportunity to earn significant credit for cooperation may be lost.  And, with our new whistleblower program … the SEC is more likely than ever to learn of the misconduct through another channel.

Let me just say a few words about how to cooperate with SEC investigations.

As an initial matter, the decision to cooperate should be made early in the investigation.  The tone and substance of the early communications we have with a company are critical in establishing the tenor of our investigations and how the staff and the Commission will view your cooperation in the final stages of an investigation. Holding back information, perhaps out of a desire to keep options open as the investigation develops, can, in fact, foreclose the opportunity for cooperation credit.  We are looking for companies to be forthcoming and candid partners with the SEC investigative team – and the board has a responsibility to ensure that management and the legal team are providing this kind of cooperation.

When choosing the path of self-reporting and cooperation, do so decisively.  Make it clear from the outset that the board’s expectation is that any internal investigation will search for misconduct wherever and however high up it occurred; that the company will act promptly and report real-time to the Enforcement staff on any misconduct uncovered; and that the company will hold its responsible employees to account.

There is, of course, cooperation and then there is cooperation, just as there are compliance programs that look great on paper but are not strongly enforced.  We know the difference.  Cooperation means more than complying with our subpoenas for documents and testimony – the law requires you to do that.  If you want your company to get credit for cooperation – and you should – then sincere and thorough partnering with the Division of Enforcement to uncover all the facts is required.”

As highlighted in this previous post, here is what White had to say about cooperation issues as a lawyer in private practice.

“Today, before making their decisions about charging companies, some prosecutors are exerting considerable – some say, extreme -pressure on corporate behavior under the not so subtle threat that if the company doesn’t do as the government wishes, the company risks, at the end of the day, being indicted.”


“To ensure that a company does not become that ‘rare’ case resulting in a corporate indictment with all of its attendant negative consequences, a company must not poke the government in the eye by declining any of its requests or suggestion of how a cooperative, good corporate citizen is to behave in the government’s criminal investigation.  This template, in my view, can give prosecutors too much power.”


Homer Moyer (Miller & Chevalier) states as follows in the June issue of Global Investigations Review.

“As this area of law has evolved, the challenges for all concerned have changed.  Agencies plainly hold most of the cards here.  They have great leverage in these cases.  [...] [T]hey are rarely subject to judicial review.  That creates a special responsibility for enforcement agencies.

As a practical matter, they are creating the operative jurisprudence.  Companies and practitioners read those settlements and try to tease out of them the principles that have been at play.  So it’s important that the government articulates its legal rationales, and frankly it’s important the government self-policies.  It may invest in a lengthy investigation at the end of which it should take no action.  And that’s sometimes hard for an agency to do.

The agencies have, over the last 25 years, expanded their jurisdictional reach; they’ve expanded their theories of liability; they have expanded the penalties imposed with new kinds of penalties and new kinds of settlements.  So I think there’s a burden on the agencies, given that much sway, to act especially responsibly.


[T]he great interest in this area has been prompted in part by reports of enormous costs to corporations of investigations.  I think law firms have to address that.  Many of the reported cases are stupefying and, in my opinion, can be avoided.  But that takes a little clear-eyed thinking on the part of both outside law firms and corporations.”

Reading Stack

From Transparency International UK - Countering Small Bribes.  As described in this release:

“[The report] provides practical advice on addressing the challenge of countering small bribes including “grease payments”. It is also designed to be of assistance to regulators, law-makers, prosecuting agencies and professional advisers. Countering small bribes is a complex challenge for companies. Transparency International research shows that, globally, more than 1 in 4 people paid a bribe in a recent 12 month period, highlighting the scale of the problem facing companies. Demands most often occur in overseas markets, where employees may be vulnerable through travelling alone or the company needs to release critical goods from customs. The guidance provides a set of principles, discussion and advice designed to help companies operate to high ethical standards, protect their reputations and fulfill their legal obligations.”


A good weekend to all.