Companies that come forward to report misconduct to the government should know they will receive a “fair shake” from the U.S. Justice Department, the head of the criminal division said Friday, making the case for voluntary disclosure of corporate misdeeds.
Assistant Attorney General Brian Benczkowski, addressing a white-collar defense conference in New Orleans, pointed to a pair of recent corporate settlements as showcasing the benefits of voluntarily reporting corporate misconduct.
Benczkowski, who joined the Justice Department from Kirkland & Ellis last year, said the settlements with Cognizant Technology Solutions Corp. and the Insurance Corporation of Barbados conveyed that companies can avoid criminal charges even when aggravating factors, such as the involvement of executives, come into play.
In both cases, the Justice Department declined to bring charges against the companies and instead charged the high-level individuals, alleging that they violated the Foreign Corrupt Practices Act by authorizing bribe payments to government officials. Freshfields Bruckhaus Deringer represented the Insurance Corporation of Barbados, and lawyers from Latham & Watkins and DLA Piper represented Cognizant.
“These two cases make clear that aggravating factors like high-level executive involvement in the misconduct will not necessarily preclude a declination when the company’s actions are otherwise exemplary,” Benczkowski said Friday, according to his prepared remarks.
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Cognizant’s board approached the government within two weeks of becoming aware the former president and chief legal officer had authorized bribe payments to an Indian government official to fast-track the construction of an office campus.
“Notwithstanding the fact that the misconduct reached the highest levels of the company, we declined prosecution. And we have made it clear why: The company voluntarily self-disclosed the conduct within two weeks of when the company’s board learned of it,” Benczkowski said. “As a result, the department was able to identify the culpable individuals—and indeed, we have announced charges against the former president and the former chief legal officer of the company for their alleged involvement in the scheme.”
Here are other highlights from Benczkowski’s remarks at the American Bar Association’s 33rd annual National Institute on White Collar Crime.
>> Benczkowski doubles down against “piling on.” Here’s what he said: “We want to avoid penalties imposed for a penalties’ sake. If a company faces other civil or foreign penalties for the same misconduct, we will apply our ‘anti-piling on’ policy to reduce or apportion financial fines, forfeitures, and restitution between authorities to ensure that the overall outcome is equitable and just. We also will avoid penalties that disproportionately punish innocent employees, shareholders, customers, and other stakeholders.”
>> Mergers and acquisitions? No problem. Benczkowski affirmed that the Justice Department’s approach to crediting self-disclosures would extend to misconduct uncovered in the process of a corporate merger or acquisition. “Applying the policy to the M&A context avoids chilling acquisition activity by law-abiding companies, who might otherwise walk away from worthwhile investments due to the risk of FCPA enforcement,” Benczkowski said. “After all, we want law-abiding companies with strong compliance cultures to be willing to make these kinds of acquisitions. Put another way, we don’t want the good corporate actors to cede the field to higher-risk entities that may only perpetuate illegal conduct.”
>> Evaluating the effectiveness of compliance monitorships. Benczkowski said the Justice Department will soon provide training “with a focus on how we, as prosecutors, will evaluate the effectiveness of corporate compliance programs.” He envisioned the upcoming training session evolving into an annual program for white-collar prosecutors. “Training is, of course, step one in any effort to promote consistency in the exercise of prosecutorial discretion,” he added. In October, Benczkowski issued guidance that could curtail the settlement agreements that require companies to hire a compliance monitor. The guidance urged prosecutors to consider the “projected costs and burdens” of a compliance monitor when negotiating corporate settlements. Benczkowski said at the time he was not planning to hire a new designated compliance counsel to replace Hui Chen, who left the Justice Department in 2017. “Relying on a single person as the repository of all of our compliance expertise also is shortsighted from a management perspective,” Benczkowski said in October.