Senior DOJ Official Comments on FCPA Enforcement

November 19, 2013

This afternoon, at the 30th International Conference on the Foreign Corrupt Practices Act (“FCPA”), Deputy Attorney General James M. Cole delivered remarks to an audience composed primarily of in-house attorneys, outside counsel, and compliance professionals. Cole, who is second only to Eric Holder in seniority at the Department of Justice (“DOJ”), emphasized three aspects of the current anti-corruption environment: (1) that international support and coordination is strong and increasing; (2) DOJ’s prosecution of FCPA violations will remain robust; and (3) DOJ expects companies to cooperate when they discover violations.

Providing concrete examples of increased worldwide support for the fight against corruption, Cole cited DOJ’s cooperation with French authorities in the 2013 prosecution of Total S.A. for bribery violations, as well as the 2008 collaborative enforcement actions against Siemens by U.S. and German prosecutors. (He referenced the dramatic change in French and German anti-bribery enforcement by noting that, until the late 1990s, bribes were tax-deductible in those countries.) Cole also discussed a U.S. government-sponsored February 2013 conference of more than 130 judges, prosecutors, and regulators from around the world, in which the officials exchanged best practices in prosecuting bribery. This was not an isolated event; Cole advised attendees that in October 2013, the head of DOJ’s FCPA unit conducted a training session for Mexican prosecutors in Mexico City, and that he anticipated a Brazilian training session in late November 2013. In sum, Cole said, “If we don’t catch you, there’s a good chance one of our allies will.”

Cole also stressed that FCPA enforcement had been very vigorous in recent years and that that trend would continue. He noted that since he took office as Deputy Attorney General in January 2011, DOJ had resolved 27 corporate enforcement actions. He also said that 28 individuals had been charged with FCPA (or FCPA-related) violations during the same period. He expressed his expectation that such results would continue as a result of the DOJ and investigating agencies’ use of subpoenas, search warrants, body wires, and wiretaps.

In his delivered remarks, Cole also made clear, however, that DOJ expects to learn of FCPA violations not only through its own investigations, but also via self-disclosures: “We frankly expect you to tell us about it and cooperate with us if you find a violation.” He acknowledged that DOJ needed to provide appropriate incentives to self-disclose violations and opined that DOJ has been doing exactly that. He warned, however, that companies that do not cooperate—or worse, that feign cooperation or impede a government investigation—will suffer the consequences.

In summary, Deputy Attorney General Cole’s remarks belie any notion that U.S. and international commitment to anti-bribery enforcement is waning. To the contrary, companies are well-advised to strengthen their anti-corruption compliance programs , formalize internal investigation protocols, and prepare for inquiries from DOJ, the Securities & Exchange Commission, and other agencies around the world.

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