Tuesday, December 16, 2008
- Unlike many cases involving a company, this does not appear to be a deferred prosecution agreement - but rather is a plea agreement with specified terms.
- The fine is huge, but it allows the company to resolve the case and move forward and the plea is not to an anti-bribery act, but rather the reporting provisions.
- The timing on this resolution is interesting - before the new administration takes over, before the end of the year - or is that reading too much into this.
- Unlike the deferred prosecution agreement in KPMG (here -p. 26) there is no explicit statement in the agreement precluding debarment. Also in Titan (FCPA case) there was a statement by the company that spoke to there being no debarment. One can find a reference to that here:
"Titan announced that it had reached a settlement to avoid debarment from work on U.S. government contracts. Avoiding debarment was particularly important to Titan, which is a leading provider of information and communications systems to U.S. government agencies."
But here again, we are only discussing reporting provisions and not anti-bribery. And certainly no one should want to hurt innocent people associated with the company.
- At the government press conference it was stated - "Siemens' cooperation, in a word, has been exceptional. Siemens has faced facts, accepted responsibility, retained experienced counsel to conduct thorough internal investigations, and has implemented real reforms." And in the sentencing memo of the government there are repeated references to the extraordinary cooperation of the company. For example, it states "[t]he reorganization and remediation efforts of Siemens have been extraordinary and have set a high standard for multi-national companies to follow." The sentencing memo has an incredible description of the internal amnesty program of the company.
- DOJ has a website that provides the FCPA, a lay person's guide, etc. A key problem one finds is that because most of the cases are resolved, one is unlikely to find a significant body of reported decisions resolving issues involving companies who were alleged to violate the FCPA. And as for individuals - the DOJ website lists 2 cases, but notes that they last updated the website in 2004.(here)
- The plea agreement letter provides for cooperation, but does not call for providing any privileged material - something that is good to see on the part of DOJ. (See FCPA Blog here)
- The agreement does limit the ability of the company from disseminating information regarding this matter without first obtaining the approval of DOJ. It states:
"Press Releases: Defendant agrees that if Siemens AG or any of its direct or indirect affiliates or subsidiaries issues a press release in connection with this agreement, defendant shall first consult the Department to determine whether (a) the text of the release is true and accurate with respect to matters between the Department and defendant; and (b) the Department has no objection to the release. Statements at any press conference concerning this matter shall be consistent with this press release."
A waiver of first amendment rights - is the government fearful of the company saying something? This may explain why the document on the Siemens website - to investors - is extremely brief -Download 20081215_settlement_eng.pdf
Addendum - Jordan Weissmann, BLT Blog, Siemens AG Lawyers View $800 Million Fine As a Victory