This article was reprinted with permission
from FCPA Professor
In my article "Revisiting a Foreign Corrupt Practices Act
Compliance Defense" (Wisconsin Law Review - here), I
highlight that against the backdrop of the DOJ's current institutional
opposition to an FCPA compliance defense, there is growing chorus of
former DOJ officials who support a compliance defense. This group
includes a former Attorney General (Michael Mukasey), a former Deputy Attorney
General (Larry Thompson), a former Chief of the DOJ's FCPA Unit (Joseph Covington),
and former high-profile corporate crime prosecutor (Andrew Weissmann).
Add another former Attorney General to the list.
In a May speech (here) to
the Lawyers for Civil Justice, Alberto Gonzalez (Attorney General 2005-2007)
stated as follows. "I do not support bribery, but I support reforms
to the FCPA that adds a compliance defense and a willfulness requirement
for corporate criminal liability."
On this topic, Gonzalez stated, for instance, as follows.
"I think that companies have an obligation of due
diligence and should have in place a strong compliance program - particularly
when doing business in countries where corruption is routine and expected.
Companies cannot purposefully remain ignorant. The question is how much do they
have to do? I think if the company follows the DOJ Principles of Prosecution:
1) makes a voluntary disclosure of wrongdoing, 2) if there was no participation
in the illegal conduct by senior management, 3) if there is full cooperation
with the government, including providing evidence and information against
employees, officers, directors, and agents of the company, 4) if the company
implements remedial measures to prevent future violations, including
disciplining culpable employees, implementing internal controls, and improving
anticorruption training, and 5) if the company has in place a strong compliance
program before the alleged behavior happened, then I question the fairness
in going after the company for the unknown violations by an agent in a foreign
land." (emphasis added).
In his speech, Gonzales also offered this perspective
from his time as Attorney General.
"Because of the increased American business activity
overseas, we made a conscious decision during the Bush Administration to
allocate more time and resources to FCPA enforcement. And we quickly
discovered two important truths. One, the FCPA gives prosecutors tremendous
discretion in defining its scope, and, thus, tremendous leverage in charging
decisions. Two, corporations do not like to be investigated by the Justice
Department or the SEC for violations of the FCPA. It's bad for business. So,
these cases often settled, charges were dropped in exchange for either
nonprosecution or deferred prosecution agreements. In an ironic twist, the more
that American companies elect to settle and not force the DOJ to defend its
aggressive interpretation of the Act, the more aggressive DOJ has become in its
interpretation of the law and its prosecution decisions."
For more on this dynamic, see my 2010 article "The
Facade of FCPA Enforcement" (Georgetown Journal of International Law - here).
Read more articles on the FCPA by Mike
Koehler at FCPA
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