As readers of this blog know the FCPA Professor and I usually look at the same Foreign Corrupt Practices Act (FCPA) enforcement action, item or remark and see different things. Sometimes we even hear the same thing and come away with different interpretations. Last week, we experienced yet another instance of the former where we both looked at the same article, that being one in Global Investigations Review entitled “Caldwell: settlement a “more powerful tool” than convictions” by Rahul Rose, yet came away with different interpretations. After some to-ing and fro-ing, we decided that we would both post our interpretations on the same day. So with a nod to Dan Fogelberg and Tim Weisberg, today we have the first twin posts from different bloggers dual- blog posts. Since we agreed to write our respective posts without seeing the other’s post and hence could not comment on each other’s post, I urge that after you finish reading my blog today, you click on over to the FCPA Professor’s site and see what his thoughts on Caldwell’s remarks might be.
The specific remarks we want to focus on were apparently made by during the Q&A session of Assistant Attorney General Leslie R. Caldwell who spoke at the Launch of the Organization for Economic Co-operation and Development Foreign Bribery Report, note these remarks were not found in the printed remarks of the speech on the Department of Justice (DOJ) website. In her Q&A, Rose reported the following, “Caldwell told the audience in Paris: “Companies cannot be sent to jail, so all a court can do is say you will pay ‘x’. We can say: ‘you will also have a monitor and will do all sorts of other things for the next five years, and if you don’t do them for the next five years then you can still be prosecuted’.” [And for the money shot] “In the United States system at least it is a more powerful tool than actually going to trial,” she said.”
It turns out that I have been thinking along these lines as well. The debate over the usefulness of Deferred Prosecution Agreement (DPAs) and Non-Prosecution Agreements (NPAs) has been long attended. Yet there are a couple of key reasons that DPAs and NPAs are such powerful tools in the fight against anti-corruption and anti-bribery which I do not believe have been fully articulated or explored. The first is that by settling, the DOJ (and Securities and Exchange Commission [SEC]) will have the ability to monitor the company going forward. This process began under the practice of formally appointing a corporate monitor nominated by the company in the throes of the enforcement action and who would be agreed to by the DOJ. This practice is generally referred to as a company having mandatory monitor.
While this specific practice received a fair amount of criticism from a variety of sources, the basic concept was sound. That concept was that a neutral third party would review a company’s compliance with the terms and conditions of a DPA or NPA and report to the DOJ at intervals generally no shorter than annually. This would give the DOJ eyes and ears into a company to oversee its adherence to the terms of the settlement. But what information did Caldwell convey in her statement as to why she thinks settlements are such a powerful tool? I read three pieces of information her statement about why FCPA settlements are such powerful tools.
‘Do All Sorts of Other Things’
Under this prong a settling defendant is required to do “all sorts of other things.” We know from the DPAs and NPAs relating to FCPA enforcement over the past several years, the minimum that a company will be required to institute is a best practices anti-corruption compliance program. While the FCPA Guidance specifies ten hallmarks of an effective compliance program, the DPAs and NPAs have had between 9 to 16 items listed in the best practices anti-corruption compliance programs that settling companies’ have agreed to institute. If the DOJ went to trial and secured a conviction the company would not have to put such a compliance program in place but only pay a fine or some other monetary penalty. Further, by requiring such a best practices anti-corruption compliance program in such a public manner, through a publicly filed DPA or NPA, the DOJ can communicate its current thinking on what it believes constitutes such a program. This provides valuable information to the compliance practitioner going forward and I believe completely disabuses the argument that companies cannot know what their obligations might be to comply with the FCPA or that companies do not know what the DOJ expects from them in the area of a FCPA compliance regime.
‘You will also have a monitor’
David E. Matyas and Lynn Shapiro Snyder from the law firm of Epstein Becker & Green P.C., described the duties of a corporate monitor in their article entitled, “Monitoring the Monitor? The Need for Further Guidance Governing Corporate Monitors Under Pre-Trial Diversion Agreements”. The monitor would meet with “the company’s board and employees. A monitor then develops a work plan which defines the scope, access, and power the monitor will have over the company. The monitor’s work involves frequent visits to the company (including possible on-site accommodations) and broad access to company documents and meetings. The monitor should be knowledgeable about the regulatory aspects of the company’s operations, but that is not necessarily a criterion for selection of the monitor. Indeed, a monitor can hire others to assist in his or her responsibilities at the company’s expense. The monitor files periodic reports with the U.S. Attorney’s Office and makes visits with that office as well as with the company. At the conclusion of a monitor’s term – often 24-36 months – the monitor files a final report that details the activities accomplished and whether the company complied with all the terms of the agreement.”
So the monitor provides the DOJ with continued insight into what the company is doing to satisfy its settlement obligations around the implementation of its compliance program. If the DOJ has high confidence that the company has and will continue to put significant resources and efforts into its compliance program, it may agree to a voluntary monitor, as we have seen with the Parker Drilling and Hewlett-Packard (HP) DPAs. If the DOJ does not have such confidence, it may require a monitor for the length of the DPA, such as we saw in the Total DPA, which was three years. The DOJ may also take an interim position on the mandatory or voluntary nature of the monitor by allowing a company to end a mandatory monitorship half-way through the pendency of a DPA as it did with the Weatherford DPA, which allowed the mandatory monitorship to end at the 18 month mark of a three year DPA, if certain criteria were met.
‘You can still be prosecuted’
This final point is not to be underestimated. Once again if a company is found guilty at trial, a fine and/or penalty will be assessed and payment is the end of it. While it still may be under enhanced scrutiny, it will not have the affirmative obligation to report any FCPA violations going forward, nor will it bear potential liability and prosecution for failure to implement the terms and conditions of the DPA or NPA. Indeed, the company will agree to be prosecuted if there is another violation or it fails to implement as agreed to.
So by using DPAs and NPAs as settlement tools, I believe that the DOJ is able to impact on an ongoing basis, for two to three years, the compliance program of a settling company. This continued oversight usually translates into greater enthusiasm by a settling company to get compliance right so that it does not have to go through the full FCPA investigation and enforcement process. Of course there will always be recalcitrant companies such as Marubeni Corporation, which do not take the agreed to compliance obligations seriously going forward. When they get into trouble as recidivists, the second penalty is usually much higher. But there is also benefit to the compliance practitioner and greater compliance community because the DOJ communicates its expectations in these DPAs and NPAs. So they also work as powerful communication tools. Finally, by requiring a third party to act as the monitor, whether voluntary or mandatory, the DOJ can get some independent insight into what a company is doing compliance-wise.
Not knowing what the Professor has said, I have not tried to anticipate his arguments or rebut them directly. Nonetheless, I have tried to articulate why I agree with Ms. Caldwell’s remarks and why I continue to find the DOJ’s use of DPAs and NPAs as settlement tools a powerful weapon in the fight against bribery and corruption. I also hope that you will find favor with this exercise that the FCPA Professor and I have engaged in because we both believe that ongoing debate over FCPA enforcement is worthwhile for the compliance practitioner and necessary for the long-term success of compliance moving forward.
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© Thomas R. Fox, 2014