Predictions on Justice Department's Upcoming FCPA Guidance
The FCPA Paparazzi is a glitter. Client alerts are being drafted as we speak. Webinars and conferences will highlight this latest development – the release of the Justice Department’s FCPA “Guidance.”
Not to burst any marketing plans or any promotional bubbles but I think it is pretty clear what the FCPA Guidance will contain. The Justice Department already has given us some clues, and I expect there to be few surprises, except for one remote possibility.
First, let’s start with the easy issues.
Reaffirming Aggressive Enforcement — The Justice Department will not retreat on its commitment to FCPA enforcement and encouraging anti-corruption compliance. The Guidance will reiterate DOJ’s public pronouncements and its aggressive enforcement program. It will deftly brush aside concerns that FCPA enforcement hinders US companies’ efforts to compete in the global marketplace.
Relaxing Successor Liability – The Justice Department will publicly pronounce its “new” policy relaxing successor liability for companies acquiring companies which may have in the past, or may be continuing to violate the FCPA. The clues for his are all in DOJ’s 2012 enforcement actions, including the recent Pfizer. The trend towards relaxation started in 2011 and has continued into 2012. Instead of holding acquiring companies accountable for the conduct of target companies, the Justice Department will require companies to integrate target companies into compliance programs and impose a deadline in some situations. The Justice Department will expect disclosures of any violations during this interim period but will be willing to forego any penalty so long as there is a commitment to addressing the problem through enhanced compliance measures and reporting obligations to the Justice Department.
The Definition of “Foreign Official” – The Justice Department will outline the position it already has taken in its briefs filed in the pending 11th Circuit case, as well as in the three district court cases over the last two years. It will not be a surprise – a “foreign official” will include any private entity which is “controlled” through ownership or voting rights. The tests for control will be outlined in general terms based on general factors consistent with the tests already outlined by the district courts. Of course, depending on how the 11th Circuit rules, the Justice Department may decide to change its analysis, although I expect the court to rule largely in the government’s favor. The Justice Department’s position will not be a shock to anyone but it will reflect only a slight retreat to the few cases in which parties agreed to settle with the Justice Department where the state-owned enterprise did not have ownership or voting control of the entity defined as containing “foreign officials.”
These are the three easy predictions. They do not hurt the Justice Department’s enforcement program. The Justice Department will gain a political advantage in the debate whether or not it is enforcing the law in a reasonable manner.
There is little chance the Justice Department will adopt, on its own, a compliance defense. Contrary to the advocates of such a defense, none of them has addressed how in practical terms the defense would apply. A compliance defense will only come about if Congress adopts it and I see no chance of that in the foreseeable future.
Even more unlikely is some reform of Deferred Prosecution Agreements or Non-Prosecution Agreements. AAG Breuer recently defended the practice in a speech and the Justice Department believes that critics of the DPAs and NPAs have lost touch with reality. On this issue, I think that some re-examination of the basis for the program may be warranted. It is difficult to base such a program on a single result – the Anderson case and the collateral consequences. However, in these difficult economic times where everyone is focused on jobs, there is little desire to re-examine this policy and the reasons for it.
To me, the more interesting issue which should be addressed, and which is unlikely to be addressed, is the issue of defining the benefits of voluntary disclosure. It did not help the Justice Department when a recent study was released showing that companies that decide to voluntarily disclose did not receive a tangible benefit in the ultimate penalty. That is a very disturbing finding and undermines an essential component of the Justice Department’s program. Some type of definition of the benefit is needed – prosecutors routinely do this in other criminal contexts and the Justice Department’s FCPA prosecutors are more than capable of defining such benefits in advance.