Thursday, October 28, 2010
Guest Blogger - T. Markus Funk
DOJ's Heavy Reliance on Non-Prosecution and Deferred-Prosecution Agreements
Although non-prosecution agreements and deferred prosecution agreements have been in use since the early 1990s, the October 21, 2010, OECD Phase 3 report points out that only in recent have they become household tools for Main Justice prosecutors:
- Non-prosecution agreements and deferred prosecution agreements in FCPA cases began in 2004; since then, they have been used in 30 out of 39 completed criminal enforcement actions against companies.
- DOJ's annual average number of non-prosecution agreements and deferred prosecution agreements has grown from less than 5 in 2004 to a high of 38 in 2007.
- Since 1998, 23 of the 44 criminal FCPA enforcement actions have resulted in appointment of corporate monitors to ensure compliance with the agreement's terms, in most cases for three years.
U.S. Administration Message: This Is Only The Beginning
During his May 31, 2010, address to the OECD in Paris, Attorney General Eric Holder reiterated the U.S. Government's continued resolute support for the Anti-Bribery Convention: "As Attorney General, I have made combating [global] corruption one of the highest priorities of the Department of Justice." Attorney General Holder also announced the U.S. government’s intent to strengthen global anti-bribery efforts through enhanced transnational collaboration and the sharing of "best practices." Said Attorney General Holder:
The OECD has been at the forefront of efforts to combat corruption wherever and however it occurs . . . . As Attorney General, I have made combating corruption one of the highest priorities of the Department of Justice . . . . [N]one of the progress the United States has made would have been possible without the long-term cooperation of our law enforcement partners around the globe – cooperation fostered by relationships established through the OECD . . . . I urge the countries [that have not yet achieved criminal convictions in anti-bribery cases] to deepen their commitment to this global effort by dedicating the appropriate resources, such as prosecutors and investigators focused exclusively on foreign bribery cases, and by prioritizing the prosecution of corruption, no matter where the evidence leads.
Attorney General Holder also delivered a diplomatically worded, but in reality quite withering, broadside to the outsized group of foot-dragging signatories: "[I]t is important to note that many of the 38 OECD member countries have no criminal convictions to date. This is not because bribes are not paid by companies in these OECD countries. It is because investigating and prosecuting corruption is difficult, requiring more will, resources, experience, and effort than most crimes."
Not coincidentally, in the month following the Attorney General's OECD speech, the U.S. House passed the Dodd-Frank Act’s conference report of the bill containing the innovative whistleblower bounty provisions. Such proactive public pronouncements, coupled with targeted, stepped-up law enforcement action yielding tangible results, explain why the OECD report so effusively lauds U.S. efforts to date.
For the full text of the OECD Phase 3 report: http://www.oecd.org/dataoecd/10/49/46213841.pdf
The corresponding USDOJ press release can be found at http://blogs.usdoj.gov/blog/archives/1020
By T. Markus Funk (firstname.lastname@example.org). Markus is a partner in Perkins Coie's Investigations and White Collar Defense Group. Markus spent the past 10 years as an Assistant U.S. Attorney in Chicago, Illinois, most recently serving in U.S. Attorney Patrick Fitzgerald's Public Corruption and Organized Crime Section. Markus' full bio is at www.perkinscoie.com/mfunk