This article was reprinted with permission from FCPA Professor
What others are saying, more candy, seriously out-of-whack, not first hand, and for the reading stack. It’s all here in the Friday Roundup.
What Others Are Saying
Last week, I published this article “Why You Should Be Alarmed By The ADM FCPA Enforcement Action.” I’ve received a higher than norm amount of feedback – all positive - about the article via e-mail and social media. Below is what others are saying about the article.
“For many reasons this is a terrific article. [You are] very brave to write this necessary and timely analysis.”
“Just wanted to say thank you for keeping me updated on your FCPA-related work. It looks like your 2010 Facade article is still holding up pretty well, despite the DOJ’s “Guidance” from last year. It will be interesting to see how long the agencies can continue with their relatively unconstrained enforcement practices.”
Thanks for sharing Mike. And don’t change: you are as good as ever!
“Excellent article, Mike! Readable even by those of us who are not lawyers. The conclusion about why ADM chose settlement is undoubtedly true of many others who are charged, but leads to a question of the [conduct] of those who are charged to extract “easy takings” rather than have to justify themselves to the SEC or DOJ. On whose behalf are they acting?”
Also a thank you for the many positive and encouraging comments I’ve received since publishing two posts (here and here) concerning the recent departure of the DOJ’s FCPA Unit Chief.
In other news on that front, White & Case recently announced here that Kathleen Hamann will join the firm as a partner “from the DOJ where she was an anticorruption policy counsel and trial lawyer assigned to the Foreign Corrupt Practices Act (FCPA) Team in the Criminal Division’s Fraud Section.” The head of White & Case’s Global White Collar Practice stated: “Kathleen’s experience at the DOJ gives her a strong understanding of the complexities of the FCPA and the federal government’s anticorruption policies. Kathleen is a wonderful addition to our global white collar team, and will further strengthen our ability to represent and defend clients around the world in all phases of investigations, and criminal and civil enforcement proceedings.”
This previous post “Like a Kid In A Candy Store” highlighted the abundant offerings of FCPA year in reviews this time of year.
There is more candy to digest.
See here for the slick Global Bribery and Corruption Review 2013 from Hogan Lovells.
See here for Mayer Brown’s FCPA Update: Year-End 2013.
But again, be warned - the divergent enforcement statistics are likely to make you dizzy at times and as to certain issues. [Given the increase in FCPA Inc. statistical information and the growing interest in empirical FCPA-related research, I again highlight the need for an FCPA lingua franca (see here for the prior post), including adoption of the “core” approach to FCPA enforcement statistics (see here for the prior post), an approach endorsed by even the DOJ (see here), as well as commonly used by others outside the FCPA context (see here)]
One could have either of the following positions.
DOJ enforcement of criminal laws is more about leverage against public companies and risk aversion by corporate leaders rather than facts and law. Therefore, even if a company settles various enforcement actions for approximately $20 billion in a year, it is not surprising that a company’s profits and stock price are up and that the company’s CEO is therefore given a substantial raise.
DOJ enforcement of criminal laws is about facts and law and if a company settles various enforcement actions for approximately $20 billion in a year, it is just not right that the company’s CEO is given a substantial raise.
Regardless of your position (I know where I fall), you would have to agree that things are seriously out-of-whack these days.
See here and here for articles regarding the compensation of James Dimon (CEO of JPMorgan). As highlighted in the Wall Street Journal article.
“J.P. Morgan Chase’s board delivered a strong endorsement of Chief Executive James Dimon, boosting his pay 74% for a year in which the nation’s largest bank agreed to more than $20 billion in legal payouts …” [...] The raise reflects the view among the board that most shareholders believe Mr. Dimon is doing a good job protecting the bank’s earnings power and driving the stock price higher despite the high-profile legal settlements, according to people familiar with the board’s conversations. [...] Many large shareholders seem comfortable with the bank’s leadership, too. The company’s stock price rose 33% during 2013, outpacing the 30% increase in the S&P 500 stock index. If not for its billions in legal expenses, J.P. Morgan likely would have earned record profits. [...] Warren Buffett, the billionaire investor who personally owns an undisclosed number of shares in J.P. Morgan, described Mr. Dimon as a “bargain.” “If I owned J.P. Morgan Chase, he would be running it, and he would be making more money than the directors are paying him,” said Mr. Buffett, who has publicly defended the bank executive before.”
“Not First Hand”
JPMorgan of course is under FCPA scrutiny for its alleged hiring practices in China. (See here among other posts).
In this video interview, Goldman Sach’s CEO Lloyd Blankfein talks about hiring issues at his company. As noted in the related article, “asked whether he had seen any hiring that looked like a bribe, Mr. Blankfein paused for a moment” and said “not first hand.”
From BalkanInsight, an in-depth piece regarding the Magyar Telecom enforcement action (see here for the prior post).
From the Economist regarding Brazil’s new FCPA-like law.
A good weekend to all.
Read more articles on the FCPA by Mike Koehler at FCPA Professor.
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