Prior posts here and here highlighted recent speeches delivered by DOJ Principal Deputy Assistant Attorney General Nicole Argentieri.
This post concerns Argentieri’s speech from last week and a future post will focus on Argentieri’s speech earlier this week.
It has been interesting to read some of the commentary on these recent speeches.
But then again, I read these speeches through the following lenses.
(1) I’ve read (as far as I know) nearly every speech in the public domain by high-ranking DOJ officials over the past approximate 15 years on the topics of corporate crime, compliance and DOJ policies related thereto; and (2) I keep data on various aspects of FCPA enforcement. (I know the Criminal Division enforces more laws than just the FCPA, but then again the DOJ has self-identified the FCPA as an enforcement priority as has a specific unit devoted to the FCPA).
In short, I just try to call the balls and strikes as I see them – not caring much (to continue with the baseball analogy) what the team managers, players, or fans think.
Thus, I sort of roll my eyes when Argentieri stated last week that the Criminal Division’s “top priority” is “holding culpable individuals accountable for their criminal acts” and stated as follows:
“We reward companies that do the right thing by making voluntary self-disclosures of misconduct and cooperating with our investigations because that helps us achieve our top priority — holding culpable individuals accountable for their crimes. The sooner we learn of misconduct, the faster we can jumpstart our own, independent investigations into the individuals responsible for the misconduct.”
The DOJ has long been saying that.
However, over the past 20 years, approximately 75% of DOJ corporate FCPA enforcement actions have lacked any related FCPA charges against company employees.
Twenty years of course is a long time period.
However, the numbers haven’t changed in any meaningful respect if that time period is split in two.
Between 2004-2014, approximately 77% of DOJ corporate FCPA enforcement actions lacked any related FCPA charges against company employees and between 2015 to the present approximately 74% of DOJ corporate FCPA enforcement actions lacked any related FCPA charges against company employees.
Moreover, Argentieri’s above statement about incentivizing corporate voluntary disclosures as a way to help the DOJ prosecute culpable individuals is a concept heard before.
For instance, in 2016 – speaking of the DOJ’s FCPA “Pilot Program” – Assistant Attorney General Leslie Caldwell stated:
“[The] idea of the Pilot Program, in part, is get the company to self report by giving it some incentives so that when it comes in and self reports, it will give us the information that it has … that will in turn enable us to prosecute individuals because we recognize that prosecution of individuals is the biggest deterrent … to corporate wrongdoing, and criminal wrongdoing … that is really one of the main goals of the Pilot Program.”
What has happened since then?
Since then, the DOJ has self-identified 19 corporate FCPA enforcement actions as being resolved consistent with its 2016 “Pilot Program” or subsequent iterations.
However, approximately 90% of those DOJ corporate FCPA enforcement actions lacked any related FCPA charges against company employees.
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