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1 FCPA Enforcement: 2015 Highlights and Trends By: Jeremy Zucker, Darshak Dholakia, and Hrishikesh Hari 1 With record settlements, continued aggressive enforcement, a renewed focus on prosecuting individuals, and public reports of a forthcoming policy regarding corporate enforcement, the past year has been a busy one for the anti-corruption compliance community. This article highlights three developments from the last year that are likely to have ongoing impact in 2016: (i) dedication of additional resources across U.S. Government enforcement agencies to identify and prosecute FCPA violations, continuing the trend of aggressive enforcement of the FCPA; (ii) recent guidance regarding the steps companies making voluntary disclosures to the government must take in order to receive mitigation of potential penalties; and (iii) a continued focus on prosecuting individuals personally involved in corrupt activities. Companies that become aware of potential FCPA violations should consider these issues when assessing how to conduct internal investigations and what to expect from interactions with the U.S. Government. I. Enforcement Trends and Resource Commitment In recent public appearances, senior DOJ and SEC officials have emphasized that enforcement of the FCPA remains a top priority for the U.S. Government, and the numbers bear this out. Over the most recent fiscal year, the SEC filed fourteen actions against entities and individuals for FCPA violations and obtained over $215 million in financial remedies. 2 Since 2009, the DOJ has obtained over $3.8 billion in penalties from corporations and has prosecuted over 60 individuals. 3 Enforcement of the FCPA is expected to remain robust in the upcoming year, due in part to significant additional resource commitments by the U.S. Government. Assistant Attorney General Leslie Caldwell recently announced that the DOJ will add ten prosecutors to the Fraud Section s FCPA Unit (increasing its size by 50 percent), which will make a substantial difference to [DOJ s] ability to bring high-impact cases and greatly enhance the department s 1 Jeremy Zucker is a partner and Darshak Dholakia and Hrishikesh Hari are associates in the International Trade and Government Regulation practice in the Washington, DC office of Dechert LLP. 2 3 ACI s 32nd FCPA Conference Keynote Address Andrew Ceresney, Director, Division of Enforcement, Tuesday, November 17, 2015, available at (hereinafter Ceresney Keynote Address ). Patrick Stokes, DOJ, Chief, FCPA Unit, ACI s 32nd FCPA Conference, Panel Remarks, Tuesday, November 17, 2015.

2 ability to root out significant economic corruption. 4 The SEC s FCPA unit similarly has over three dozen attorneys and other professionals dedicated to enforcement of the FCPA. In addition, the Federal Bureau of Investigation has formed, and will be adding additional experienced hands to, squads dedicated to FCPA enforcement. 5 Enforcement officials also have made clear that they now have more sources of information about FCPA violations, ranging from whistleblowers, foreign law enforcement, competitors, current and former employees, the foreign media, and others. Of the approximately 4,000 whistleblower tips the SEC received over the most recent fiscal year, over 180 related to the FCPA continuing a steady increase of FCPA whistleblower tips in recent years. 6 SEC officials have remarked that the quality and sophistication of whistleblower tips have improved in recent years, increasingly involving preparation of complaints by counsel, detailed allegations and documentation of such allegations. 7 As Assistant Attorney General Caldwell recently warned: if you discover an FCPA violation that you opt not to self-report, you are taking a very real risk that [the U.S. Government] will one day find out, or that we already know, and you will not be eligible for the full range of potential mitigation credit. 8 II. Considerations for When a Company May Be Eligible to Receive Mitigation as a Result of Cooperation in Government Investigations Over the past year, the DOJ and SEC have provided guidance through public statements, written memoranda, and enforcement actions regarding the factors considered by the U.S. Government in assessing whether to offer companies mitigation of penalties in connection with voluntary disclosures of FCPA violations. While it has been a long-standing Assistant Attorney General Leslie R. Caldwell Delivers Remarks at ACI s 32nd FCPA Conference, Tuesday, November 17, 2015, available at (hereinafter Caldwell Keynote Address ). Jeff Sallet, FBI, Special Agent in Charge, New Orleans, Keynote Address at ACI s 32nd FCPA Conference, Wednesday, November 18, Kara Brockmeyer, Chief, FCPA Unit, Division of Enforcement, SEC, Panel Remarks at ACI s 32nd FCPA Conference, Tuesday, November 17, 2015; see also 2015 Annual Report to Congress on the Dodd-Frank Whistleblower Program, SEC Office of the Whistleblower, available at (stating, the Commission has paid more than $54 million to 22 whistleblowers since the Commission s new whistleblower rules went into effect in August In Fiscal Year 2015 alone, more than $37 million was paid to reward whistleblowers for their provision of original information that led to a successful Commission enforcement action with monetary sanctions totaling over $1 million. ). Id. Ceresney Keynote Address, supra note 1.

3 practice of the U.S. Government to offer mitigation to companies that voluntarily disclose potential violations, and that cooperate in any resulting investigations, the past year brought multiple instances of specific guidance on the standards that must be met for a company to receive mitigation. A. Steps to Maximize Likelihood of Receiving Mitigation from the Government Assistant Attorney General Caldwell has emphasized that in order to maximize mitigation credit once an FCPA issue is discovered, companies are advised to: (1) voluntarily self-disclose; (2) fully cooperate; and (3) timely and appropriately remediate identified violations. 9 In practice, whether or not companies should disclose a potential FCPA violation, how much cooperation is appropriate, and the extent of remediation will depend on many variables. For its part, the U.S. Government takes the view that it has been working to make clear to companies the benefits of voluntary disclosure (which nonetheless remains in dispute among those who practice in this area). The U.S. Government has also recently emphasized that companies must earn cooperation credit. Significantly, and as discussed in greater detail in Section III below, in order to be eligible for any cooperation credit whatsoever, in both criminal and civil cases, corporations under investigation must provide DOJ with all relevant facts about the individuals involved in corporate misconduct. Moreover, companies considering whether foreign data privacy requirements may be asserted as a defense to providing documentation housed outside the United States to the U.S. Government are also on notice that the U.S. Government has, as a result of exposure to hundreds of companies asserting such defenses, become more sophisticated in this regard. To receive cooperation credit, companies asserting data privacy as the basis for being unable to disclose certain materials should be prepared to demonstrate that best efforts were used to negotiate a compromise between data privacy regimes outside the United States and the U.S. Government s requests for information and evidence. The SEC also has provided some recent guidance regarding how cooperation by companies will shape enforcement from the agency. Andrew Ceresney, Director of the SEC s Division of Enforcement, recently stated that any public company that fails to self-report a potential FCPA violation to the SEC will be ineligible for a deferred prosecution agreement or a non-prosecution agreement. 10 Relaying lessons to be learned from a recent FCPA enforcement action against PBSJ Corporation, Ceresney stated that, PBSJ self-reported the violations to the SEC, took immediate steps to end the misconduct, and fully cooperated with the investigation, including voluntarily making foreign witnesses available for interviews and providing factual chronologies, timelines, internal summaries, and full forensic images to the SEC. Under the DPA, PBSJ agreed to pay more than $3 million in disgorgement and prejudgment interest and a penalty of $375,000 approximately 10% of the disgorgement level and to comply with 9 10 Caldwell Keynote Address, supra note 3. Ceresney Keynote Address, supra note 1.

4 certain undertakings. 11 The SEC has not clarified how it will treat cases where a company was made aware of an allegation by the U.S. Government through, for example, a whistleblower tip and it will be important to monitor whether any additional guidance in this regard will be provided in B. Increased Sophistication in Assessing Compliance Programs U.S. enforcement officials have long attempted to assess the quality of a company s compliance approach when determining whether, and to what extent, the company merits mitigation of potential penalties. The DOJ now is attempting to bring greater sophistication and consistency to this process. In this regard, the DOJ recently hired a compliance consultant, Hui Chen, to help Fraud Section prosecutors assess the quality of a company s compliance program and the remedial measures implemented in connection with the disclosed violations. 12 According to DOJ, Ms. Chen will help DOJ in assessing the factors set forth in the U.S. Attorneys Manual regarding the prosecution of business entities, including the existence and effectiveness of any compliance program that a company had in place at the time of the conduct giving rise to the prospect of criminal charges, and whether the corporation has taken meaningful remedial action, such as the implementation of new compliance measures to detect and prevent future wrongdoing. 13 Assistant Attorney General Caldwell made clear in a speech relating to the announcement that the DOJ s hiring of a compliance counsel should be an indication to companies about just how seriously we take compliance. 14 C. Factors That May Lead to a Declination to Bring Charges Against Companies Until 2015, corporate declinations in which the government formally notified a company that it would not be bringing an enforcement action for FCPA violations were relatively rare (to the extent that such actions were made public). However, in 2015, the SEC and DOJ together issued Id.; see SEC Charges Former Executive at Tampa-Based Engineering Firm With FCPA Violations, January 22, 2015, available at see also Deferred Prosecution Agreement between PBSJ Corporation and SEC, available at New Compliance Counsel Expert Obtained by DOJ Fraud Section, DOJ, available at Id. Assistant Attorney General Leslie R. Caldwell Speaks at SIFMA Compliance and Legal Society New York Regional Seminar, DOJ, November 2, 2015, available at

5 over a half-dozen public declinations. 15 Relatively few details are made available regarding such declinations (though when FCPA allegations and investigations already are publicly known, companies generally make announcements if and when they receive a declination), but Assistant Attorney General Caldwell recently stated that each declination involves self-reporting and significant cooperation. Notably, in the case of PetroTiger Ltd., DOJ officials discussed publicly why PetroTiger was not prosecuted namely, because the company voluntarily disclosed the activities at issue, cooperated with U.S. authorities, and implemented measures to remediate the violations. 16 PetroTiger s cooperation enabled the DOJ to prosecute the company s Chief Executive Officer and other senior executives. The DOJ is also reportedly considering a new policy that, if adopted, would result in more declinations for corporations that voluntarily disclose, cooperate with the U.S. Government, and remediate foreign bribery issues. 17 The draft proposal is reported to be part of a concerted effort to increase the incentive for companies to be forthcoming about wrongdoing by their directors and officers and to provide the business community more transparent guidance on penalties. The DOJ has declined to comment on the draft policy; its issuance would be a significant development. III. Continued Focus on Prosecution of Individuals and Influence on Assessing Whether a Company Should Disclose The U.S. Government continues to focus on holding accountable individuals who are personally involved in corrupt conduct, as opposed to simply bringing actions against their employers. In September 2015, the DOJ issued a policy memorandum, signed by Deputy Attorney General Sally Yates, regarding the prosecution of individuals in corporate fraud cases that should impact st Century Fox Inc. and News Corp (February 2, 2015), Eli Lilly (February 12, 2015), Hyperdynamics Corporation (May 26, 2015) and PetroTiger Ltd. (June 15, 2015) each learned that the DOJ had closed FCPA investigations without bringing any charges against the company; similarly Cobalt International Energy, Inc. (January 29, 2015), Gold Fields Ltd. (June 24, 2015), Net 1 UEPS Technologies (June 1, 2015), and NCR Corp. (August 6, 2015) each also learned that the SEC had closed FCPA investigations without bringing any charges. Former Chief Executive Officer of Oil Services Company Pleads Guilty to Foreign Bribery Charge, DOJ, June 15, 2015, available at Ellen Nakashima, Justice Department could give firms a pass on foreign bribery if they confess, Washington Post, November 11, 2015, available at changes-in-how-it-pursues-foreign-bribery-cases/2015/11/10/95ef be-11e5-9a f9a0ec_story.html.

6 how companies assess voluntary disclosure and cooperation. 18 The so-called Yates Memorandum identifies the following six steps intended to enhance DOJ's effort to leverage its resources to identify culpable individuals at all levels in corporate cases : In order to be eligible for any cooperation credit whatsoever, in both criminal and civil cases, corporations under investigation must provide DOJ with all relevant facts about the individuals involved in corporate misconduct; 2. Criminal and civil corporate investigations should focus on individuals from the inception of the investigation; 3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another; 4. Absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation; 5. DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and 6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay. Of the six steps discussed above, the first is likely to have the most significant impact on future internal investigations and raise important questions regarding whether corporations should voluntarily disclose potential issues to the DOJ. In order to receive any mitigation credit after the Yates Memorandum, companies must focus their investigations on individuals and share findings and conclusions regarding those individuals with the U.S. Government. Not only will this require focusing investigations on individuals early on in a review, but it will also change incentives for employees to cooperate with their company. The Yates Memorandum has been criticized because it may increase the cost and scope of investigations and result in delays in the final resolution. It is expected that companies will have to expand the scope of investigations in order to credibly demonstrate to the DOJ that all individuals potentially involved in criminal conduct were pursued. In practice, this will require potentially significant additional time and expense. The requirement that DOJ attorneys must justify in writing to their superiors the basis for discretionary choices to pursue or decline to Individual Accountability for Corporate Wrongdoing, DOJ, September 9, 2015 (hereinafter Yates Memorandum ), available at Id., at 2.

7 pursue individual corporate officials also may result in significant delay in negotiating settlements. IV. Going Forward Given the number of policy adjustments at the SEC and DOJ over the past year and the focused resource commitment within the U.S. Government to enforcement of the FCPA, companies should remain vigilant in monitoring anti-corruption compliance developments and assessing whether any such developments merit adjustments to their anti-corruption compliance programs.

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