In September, when the Serious Fraud Office was still planning for roll out of the Bribery Act around now, Vivian Robinson QC, General Counsel for the SFO, recorded a webcast discussing the new law and how to comply with it.
Entries in Jurisdiction (88)
Will Jeffrey Tesler follow Jack Stanley and Wojciech Chodan in a plea deal? Here are some reasons why he might . . . .
If the U.S. Chamber of Commerce was hoping for the President's support to fix the FCPA, they didn't get it.
Enough already. Ousama Naaman's lawyers say he's already spent just shy of a year in prison in Germany awaiting extradition, and another seven months under strict conditions of release in the U.S.
Fear of the new UK Bribery Act is overblown. UK enforcers will act reasonably, build a track record, and focus on egregious cases of bribery.
We check in with the D&O Diary, the FCPA Prof, lawgents.com, and the WSJ online.
Because the FCPA and the Bribery Act reach everywhere, many companies will need to start complying with both. That's going to be trickier than it sounds.
There's more to FCPA conspiracy charges and aiding and abetting than meets the eye, according to this reader.
What are the odds that the next Congress will amend the FCPA? Not bad, we think.
It's not hard to find reasons why the DOJ and SEC would rather prosecute corporations instead of individuals.
Here are a few:
Corporations can't defend themselves. They're strictly liable under respondeat superior for crimes committed by employees in the scope of their jobs. That's why no company has fought against FCPA charges in court for more than two decades. Individuals, on the hand, can and do fight in court and sometimes win. Recent examples of tough trials with mixed results include Frederick Bourke and William Jefferson.
Corporations cooperate. No all companies self-disclose their FCPA offenses, but most do. They hire outsiders to conduct in-depth internal investigations and hand the results over to the government. That makes life easier for prosecutors and in theory benefits the company. Individuals can also plead guilty, of course, and many do. But they usually first try to defend themselves, which increases the government's burden.
Corporations can't run or hide. Domestic companies are all registered in their home states and can be brought to court there. Foreign corporations that are issuers under the FCPA have also submitted to the jurisdiction of U.S. courts. But individuals of any nationality can run. If they make it to another country, they have to be extradited back to the U.S. to face trial, a complicated process that can take years and may not be successful. Some examples include Viktor Kozeny and Jeffrey Tesler.
Corporate cases make headlines. For years, journalists have known that FCPA cases don't generate much buzz with the general public, and cases involving individuals hardly make a ripple (the Bourke and Jefferson cases were exceptions because of the defendants' fame). But giant penalties assessed against well-known global corporations are widely reported. Recent examples are Siemens, KBR, Daimler, and BAE. If the DOJ and SEC want to spread the word about the FCPA, chasing big companies is a good way to do it.
Corporate prosecutions are cost effective. They don't require long and expensive trials, so there's less drain on agency resources. And the payday for the U.S. government can be a quarter or even a half billion dollars per case, swamping the top fines for individuals.
How do any of the above influence prosecutorial decisions, if at all? The DOJ and SEC would say they don't. In other posts, we'll look at the recent enforcement track record, and we'll try to see things from the perspective of the prosecutors.