The prosecution of corporations always makes good headlines. But the emerging trends in these corporate prosecutions tend to be at the margins and therefore less reported—prosecutors commit to sustained and vigorous enforcement of white collar criminals; defense attorneys push back that sentences are overly harsh and that innocent conduct is increasingly characterized as fraud. These messages all played out among the largest annual gathering of lawyers focusing on white collar crime, the ABA White Collar Institute in New Orleans, Louisiana, earlier this month.
The Foreign Corrupt Practices Act (FCPA) was front and center at the conference, as it has been for the last decade. But at least three relatively new messages were included in the discussion.
First, practitioners at the conference noted increasing attention to FCPA issues in the merger and acquisition (M&A) process. Acquiring companies that identify and report FCPA violations by target companies are being given smaller fines, and in some instances, a pass on any sanctions. In contrast, acquiring companies that fail to identify these problems in the due diligence process and allow the practices to continue after the acquisition is complete are being punished not only for the underlying conduct, but also for the lax compliance programs that failed to ferret out the corrupt practices. Companies engaging in M&A transactions must include rigorous FCPA due diligence to minimize risk, since the FCPA liabilities can quickly outweigh all accretive benefits from an acquisition. Other practitioners identified some best practices for FCPA training of the newly acquired company’s employees as the businesses are integrated.
Second, senior members of the Department of Justice (DOJ) and the Securities and Exchange Commission clearly attempted to quantify the benefits of self-reporting FCPA violations. In the past, it has been difficult to discern the benefits of self-reporting, given that companies that voluntarily came forward still received stiff fines under the FCPA sentencing guidelines. But prosecutors and regulators at the conference intentionally included specific examples of the benefits that some companies received from self-reporting and, likewise, the penalties that other companies faced for refusing to report or cooperate. These concrete examples provide corporations with a better framework as they consider self-disclosure.
Third, prosecutors reiterated their renewed focus on the prosecution of individual executives and not just the corporations. As critics gather examples showing that large fines paid by corporations do not deter future misconduct by corporations, the DOJ intends to seek out individual executives for prosecution. Corporations looking to gain credit for cooperating with the government should expect pressure to identify culpable individuals who were responsible for the misconduct. Prosecutors and defense attorneys at the conference predicted a rise in the pressure on corporations to name names and not just to accept responsibility at a corporate level. This development will only increase the importance for companies and boards to conduct thoughtful and deliberate internal investigations, weighing the risks and likely outcomes at each stage.