Lanny Breuer, the head of the U.S. Justice Department’s Criminal Division, last week spoke with The National Law Journal about successes and failures in the enforcement of the Foreign Corrupt Practices Act, and about his expectations for the guidance the department is planning to issue later this year.
NLJ: Over the past several months there have been some ups and downs in FCPA enforcement. What’s the overall state of enforcement?
Breuer: I think the overall state of enforcement is robust, fair and ambitious. Anytime you take enforcement to a new level you’re going to recognize that you will have some wins and some losses. If you look at the overall trend there’s just no question we’ve made great progress. I think the state of affairs is overwhelmingly positive.
NLJ: Do you get a sense there’s greater compliance with the FCPA now? What are you hearing from company officials?
Breuer: I do think there is greater compliance. I think companies are not of one mind. Some companies probably think that there’s too much enforcement. Other companies are thrilled with the level of enforcement. I think there’s the recognition that it’s good for business when you can ensure that your company and your employees throughout the world comply with the law. I don’t think there’s any question that there’s much more of a recognition of the law — much more of a value to the law — than there’s ever been before. Most companies, most CEOs, want to do the right thing and they try to approach this issue in a very responsible way.
NLJ: One of the recent setbacks was the collapse of the Gabon undercover sting case in D.C. What were the lessons learned?
Breuer: There’s no question we looked hard at how the sting came about. I think we have to recognize that in undercover kinds of cases, they have to be very explicit. We took a hard look at how the jury reacted. We took a hard look at the judge’s rulings in that particular case. Our indictment review has always been rigorous, and it will continue to be even more rigorous than before. We take a hard look at our wins, and we take a hard look at our losses. We try to be as good as we can be.
NLJ: What do you say to commentators who argue FCPA sting cases are a thing of the past?
Breuer: Those commentators I would disagree with. Sting cases in any area have to be well thought out, they have to be appropriate. We preserve our options to use whatever effective, appropriate law enforcement techniques are necessary to identify crime and then thereafter to prosecute it effectively.
NLJ: 2011 saw an increase in the number of FCPA trials involving individuals. Do you expect that to continue?
Breuer: I can never predict whether there will be more trials or fewer trials. What I can tell you is that the commitment to enforcing the FCPA — just like the commitment to enforcing white-collar cases more generally — has never been greater. I see that trend continuing. We continue to bring cases we think are appropriate.
NLJ: How often do companies ask for informal opinions from DOJ regarding the FCPA?
Breuer: I do think it’s used with some level of frequency. It’s one of the rare areas of the law where if you are willing to contact us, to give us those factors, we’re delighted to give you an opinion. More generally, this is an area of great transparency. We put all our pleadings and other guidance on the Web. I think we’re as transparent as possible as we go about these cases.
NLJ: What are your expectations about the FCPA guidance?
Breuer: I’m hopeful that people will think that it’s the product of a great amount of work and it’s a product of the best of intention and that people — whether they agree with everything in it or not — will say the department and the SEC absolutely took concerns to mind. I continue to believe in the importance of the FCPA as one of the great ways that this department, this administration, fights corruption. I think having a comprehensive approach to fighting corruption is a very important step for the United States and the world community. I think we see the results of that by more and more members of the world community joining in this effort. I think it’s good for American business.