Lanny Breuer
Photo: Diego M. Radzinschi / NLJ
Once the Department of Justice and the Securities and Exchange Commission released their updated guidance on the Foreign Corrupt Practices Act on Wednesday, no shortage of attorneys were ready to weigh in on antibribery enforcement—including the enforcers themselves.
As our sibling publication, The BLT: the Blog of Legal Times reported, Assistant Attorney General Lanny Breuer was making the public speaking rounds Friday. He stopped at both the Federalist Society in Washington, D.C. and the American Conference Institute’s annual FCPA conference in Maryland—the same spot where one year ago Breuer promised guidance on the statute that bans U.S.-listed companies from paying bribes abroad.
“Our global anticorruption mission has seeped into the Criminal Division’s core. And there is no turning back,” Breuer said, according to his prepared remarks. “The FCPA is now a reality that companies know they must live with and adjust to; and this nation is better off for it.”
Breuer emphasized enforcement statistics in the speech, which was originally slated for Thursday morning (that is, until BP agreed to a guilty plea over the Deepwater Horizon disaster the same day). As to settlements the department has reached with companies, the criminal division chief noted:
“I will point out just two statistics: First, since 2009, our FCPA Unit has entered into over 40 corporate resolutions, including nine of the top 10 resolutions ever, as measured by the size of the penalty, resulting in over $2 billion in fines.”
And, as when addressing the 13th annual Pharmaceutical Regulatory and Compliance Congress last week, Breuer highlighted the Justice Department’s efforts to go after individuals—not just corporate entities.
“Second, since 2009, we have secured convictions against over three dozen individuals,” he said. “One corporate executive, the former president of Terra Telecommunications, was sentenced to 15 years in prison—the longest sentence ever imposed in an FCPA case.”
Interestingly, for the FCPA-philes out there, Breuer had some kind words for how the blogosphere covers his legal team’s work. “I’ve heard that there are even several blogs that keep track of each one of our cases, which I think is terrific,” he said.
Now that the guidance is out, Breuer said the 120-page resource, “will help businesses that are unsure of their obligations, and should therefore improve compliance”—adding another hat-tip to the corporate compliance crew:
“Compliance officers and others have, over the years, worried out loud to me that their employees live in doubt. Does the cup of coffee they bought for a contracting official violate the FCPA? Will paying for a taxi for someone who might be a foreign official land them in prison? As you will see, the guide addresses those questions and many others.”
A compliance program “on paper” isn’t going to cut it, either, Kara Brockmeyer, head of the SEC’s FCPA unit, told ACI conference attendees on Thursday. According to this enlightening account from Corporate Crime Reporter, Brockmeyer, who shared the panel with DOJ’s FCPA unit chief Charles Duross, said:
“If the tone at the top says: ‘Get business at all costs,’ a compliance program on paper is not going to be enough.”
Brockmeyer and Duross also warned companies not to keep violations a secret.
“You will always be in a better position if you come and tell us about it than if we hear it from a whistleblower or from The New York Times,” Brockmeyer said, according to CCR, while Duross added, “The likelihood of you getting caught today is greater today than at any other time previously.”
With that, we leave you to finish your guidance reading.
See also: "DOJ and SEC's New FCPA Guidance Provides a Desktop Compliance Reference for Companies," CorpCounsel, November 2012.
