Friday, March 14, 2008
The FCPA Blog appropriately notes we haven't being seeing many deferred prosecution agreements these days (see here). As the FCPA Blog points out, there have been no reported agreements since Flowserve on February 21.(see here). It is probably a wise move for the government to lay low on deferred prosecution agreements right now with the microscope focused on how monitors are being appointed on the agreements, and also looking at issues of who should have oversight - prosecutors or the courts.
And then to hear discussion of the possibility of former NY Governor Spitzer obtaining a deferred prosecution agreement sends an interesting message. One finds this mention noticeably in an article in the Wall Street Journal by Laurie P. Cohen, Glen R. Simpson and Amir Efrati. (see here). In the corporate setting, it is rare that we see an individual obtaining a deferred prosecution agreement. The last ones of major significance were Former Monster Worldwide CEO Andrew McKelvey (see here) and Frank Quattrone (see here). Now if they decide upon a deferred prosecution agreement with Spitzer, what kind of terms will they include, and will it include a clause used in the Quattrone agreement requiring that he "can only associate with law-abiding persons."
Tuesday, March 11, 2008
The hearing on monitors in Deferred Prosecution Agreements was held yesterday. To listen and view a video webcast of the hearing go here. It is 2 hours and 54 minutes, but there is a long break between the two sessions.
In his opening comments, Hon. John Conyors, Jr. called for judicial oversight of these agreements. He stated as his second point that "despite the guidance the Department released just yesterday regarding use of corporate monitors in these agreements, this guidance still fails to ensure uniformity in the agreements themselves. Indeed, some agreements require the implementation of compliance programs, restitution and fines, while others do not." His fourth point was that "there should be independent judicial oversight of corporate settlement agreements because currently there is no transparency and no requirement that they be made public." Additionally he stated,
"Judicial oversight would help to ensure greater legitimacy of these agreements by providing a neutral decision-maker to prevent abuses and improper politicization, as well as ensure proper completion of the terms of the agreements. Judicial oversight would also provide some currently lacking public exposure of some aspects of the agreement process itself."
Former AG John Ashcroft's written testimony can be found here. From the DOJ, David Nahmais, (see written testimony here), noted the recent adoption of new DOJ guidelines. A few interesting items discussed in the hearing:
- Ashcroft was hit with questions such as - "who besides yourself was considered for the Zimmer Case?" He admitted that he did not know who else was considered for this position, and he did not know if the appointment of the monitor was bid out for others to be considered.
- As one might suspect there was discussion of the ethics chair being given to a U.S. Attorney's alma mater. A comment was made that another law school had been approached first, but that they already had a business ethics chair. This listener was wondering - should that have precluded them from receiving this new chair, and aren't there other law schools out there - even in this same state or close by in an adjoining state?
- There was also discussion of the transparency problems when there are non-prosecution agreements. After all, these agreements bypass the court system.
- There were also comments on whether these agreements should even be allowed.
- It was brought out that there have been over 80 agreements.
Today is the Subcommittee on Commercial and Administrative Law hearing on "Deferred Prosecution: Should Corporate Settlement Agreements Be Without Guidelines?" (see here) And on the eve of this hearing, the DOJ has issued a new memo on the selection and use of monitors in deferred prosecution agreements.(see here). But what exactly does this new memo do, and does it alleviate the issues that have arisen with respect to these agreements.
Clearly this memo provides some internal oversight by main justice when a monitor is being appointed. Perhaps the best aspect of this memo is that it provides that the Deputy AG must approve a monitor. It also creates a standard of a "reasonable person to question the monitor's impartiality" and precludes an association between the monitor and corporation for a period of time following the completion of the monitoring relationship. Clearly these provisions are a step in the correct direction.
But the memo fails to go far enough in many respects. For example:
- The memo emphasizes that it is merely internal guidance, and outside parties have no ability to enforce the statements in the memo. Like most DOJ guidelines, there is no remedy when the government fails to abide by its internal guidelines.
- The choice of the monitor, the control of the monitor, and the communication by the monitor is all within the government. Perhaps in the case of a non-prosecution agreement an argument can be made that there is no body for oversight. But when a case has been filed in the courts, and a deferred prosecution agreement is reached, it seems fairer to have the neutral magistrate in the role of selecting the individual for this position.
- Monitors should not be seen as working for the DOJ, yet the memo even goes so far as to say that "the agreement should provide for an extension of the monitor provision(s) at the discretion of the Government in the event that the corporation has not successfully satisfied its obligations under the agreement."
This memo emphasizes a basic flaw in many deferred prosecution agreements. In many instances, the agreements are not contractually valid and are lopsided agreements that basically provide for the corporation becoming an investigator and agent of the DOJ. Deferred prosecution agreements contain terms that place exclusive power in the hands of the government, even for determining whether a breach of the agreement has occurred. (See Zierdt & Podgor, Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing, 96 Kentucky LJ (2007))
Congress is right to be holding hearings here. If the best that the government can offer is more DOJ control, then Congress needs to intervene with legislation.
Monday, March 10, 2008
A House Judiciary Committee hearing on deferred prosecution agreements issued its list of witnesses for the Tuesday, March 3, 2008 - 10:30 AM Subcommittee on Commercial and Administrative Law Hearing on "Deferred Prosecution: Should Corporate Settlement Agreements Be Without Guidelines?" The panelists are:
Panel I: Hon. David E. Nahmais
The U.S. Attorney's Office
Northern District of Georgia
Timothy L. Dickinson, Esq.
Paul, Hastings, Janofsky & Walker, LLP
Hon. John D. Ashcroft
The Ashcroft Group, LLC
George J. Terwilliger, III
White & Case, LLP
University of Virginia School of Law
Panel II: Hon. Frank Pallone Jr.
Member of Congress
New Jersey, 8th District
Hon. William J. Pascrell Jr.
Member of Congress
New Jersey, 6th District
Sunday, March 2, 2008
FoxNews - Ashcroft to Testify on Monitors
Houston Chronicle (Mary Flood) - Justice's Deals Draw Scrutiny -Research by Houston Lawyers Takes Issue With Corporate Penalties
Northrup Talks Blog - (Item removed as a reader notified me that the link had been compromised)
The Record- NewJersey.com - Editorial: Christie's Cross
Wednesday, February 27, 2008
The controversy over the appointment of monitors under deferred prosecution agreements will be the subject of a hearing on Capitol Hill, and former Attorney General John Ashcroft has agreed to testify at the proceeding. Ashcroft was appointed by Christopher Christie, the U.S. Attorney for the District of New Jersey, to serve as a monitor for Zimmer Holdings, the medical device manufacturer that settled charges that it made improper payments to doctors. The company disclosed that the monitorship with Aschcroft's consulting firm would cost between $28 million and $52 million, which drew the attention of two New Jersey Congressmen who questioned the appointment by USA Christie of his former boss. There were rumblings that the House Judiciary Committee would subpoena Ashcroft if he did not agree to testify, and that threat is now gone. An AP story (here) discusses the former Attorney General's decision. (ph)
Thursday, February 21, 2008
A press release of the DOJ states that "Flowserve Corporation (Flowserve) has agreed to pay a $4 million penalty as part of an agreement with the U.S. government regarding charges brought in connection with an ongoing investigation related to the United Nations Oil for Food program." Flowserve notes the agreed upon penalty on their website as being "a fine, profit disgorgement and related prejudgment interest to the SEC totaling $6,574,225 and a penalty to the DOJ of $4,000,000."
DOJ notes that "[t]he Information [filed by the government] charges that Flowserve Pompes engaged in a conspiracy to commit wire fraud and to violate the books and records provisions of the Foreign Corrupt Practices Act."
Wednesday, January 30, 2008
One need only look at Carrie Johnson's Washington Post article of today to realize the importance of deferred prosecution agreements and the controversy on the appointment of monitors. The article focuses on how Attorney General Mukasey, prior to his approval as AG, had been a finalist for such an appointment. In the background is legislation proposed by Rep. Frank Pallone (D-NJ) which would provide transparency and oversight on some of the existing DOJ practices with respect to deferred prosecution agreements. It reads as follows:
2d Session H. R. 5086
To require the Attorney General to issue guidelines delineating when to enter into deferred prosecution agreements, to require judicial sanction of deferred prosecution agreements, and to provide for Federal monitors to oversee deferred prosecution agreements.
IN THE HOUSE OF REPRESENTATIVES January 22, 2008 Mr. PALLONE introduced the following bill; which was referred to the Committee on the Judiciary A BILL To require the Attorney General to issue guidelines delineating when to enter into deferred prosecution agreements, to require judicial sanction of deferred prosecution agreements, and to provide for Federal monitors to oversee deferred prosecution agreements.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. DEFERRED PROSECUTION AGREEMENT GUIDELINES.
(a) In General- The Attorney General shall issue guidelines delineating when United States attorneys should enter into deferred prosecution agreements, including appropriate factors for United States attorneys to consider in determining whether to enter such agreements as described in subsection (b).
(b) Appropriate Factors for Consideration- Appropriate factors for consideration in the determination of whether to enter into a deferred prosecution agreement include--
(1) the potential harm of entering into a deferred prosecution agreement to employees, shareholders, and other stakeholders of the corporation that is to enter into the deferred prosecution agreement who are not potential parties to litigation relative to the corporate wrongdoing;
(2) the degree of cooperation by a corporation that is to enter into a deferred prosecution agreement with investigators including the corporation's willingness to provide documents and make available for questioning employees, officers, and directors of the corporation;
(3) remedial action taken by the corporation that is to enter into a deferred prosecution agreement in response to wrongdoing such as internal investigation, dismissal of employees, acknowledgment of wrongdoing, payment of restitution, and other structural, management, and policy changes;
(4) availability of criminal charges against specific employees who may have engaged in illegal acts relative to the corporate wrongdoing; and
(5) availability of sufficient alternative punishments or remedial actions pursuant to a deferred prosecution agreement.
SEC. 2. JUDICIAL APPROVAL OF DEFERRED PROSECUTION AGREEMENTS.
(a) In General- A deferred prosecution agreement shall be approved by a United States district court judge or a United States magistrate judge in the United States district court where criminal charges would be prosecuted by a United States attorney.
(b) Submission of Deferred Prosecution Agreement- A deferred prosecution agreement shall be submitted to the appropriate United States district court where criminal charges would be prosecuted by a United States attorney to receive judicial sanction.
(c) Judicial Review and Sanction- A United States district court judge or a United States magistrate judge shall review the terms of a deferred prosecution agreement to ensure that the agreement comports with public interest and all applicable laws and legal precedent before authorizing the deferred prosecution agreement to be entered into by the parties.
SEC. 3. FEDERAL MONITORS.
(a) In General- A Federal monitor shall oversee a deferred prosecution agreement.
(b) Appointment of Federal Monitors- A Federal monitor shall be appointed by an independent third party (a United States district court judge or a United States magistrate judge) from a pool of pre-qualified firms or individuals (or both).
(c) Qualifications of Federal Monitors- A Federal monitor shall have experience in criminal and civil litigation.
(d) Payment of Federal Monitors- A Federal monitor shall be paid according to a pre-determined fee schedule set by the United States district court.
(e) Report Requirement in Deferred Prosecution Agreement-
(1) A deferred prosecution agreement shall include a requirement that a Federal monitor submit reports to the United States attorney and to the United States district court.
(2) A deferred prosecution agreement shall include the number and frequency of reports required by a Federal monitor.
SEC. 4. BREACH OF DEFERRED PROSECUTION AGREEMENTS. Upon request from a United States attorney, the presiding judge in the district court where a deferred prosecution agreement was approved shall determine if the deferred prosecution agreement has been breached.
(esp) (w/ a hat tip to Stephanie Martz)
Tuesday, January 29, 2008
As anticipated here, the DOJ has announced in a press release that "Sigue Corporation and Sigue, LLC (“Sigue”), San Fernando, California-based money service businesses, entered into a deferred prosecution agreement on charges of failing to maintain an effective anti-money laundering program and will forfeit $15 million to the U.S. government." In addition the "Financial Crimes Enforcement Network (FinCEN) announced the assessment of a civil money penalty in the amount of $12 million against Sigue Corporation and Sigue, LLC, . . . . for violations of the Bank Secrecy Act (BSA). Sigue, without admitting or denying the allegations, consented to the civil money penalty." (see here)
The DOJ reports that the Information was filed in the Eastern District of Missouri and that it "charges Sigue with one count of failing to maintain an effective anti-money laundering program." The press release states that
"The company will pay $15 million to the United States, representing funds that are subject to forfeiture as a result of the criminal charge, and has agreed to commit an additional $9.7 million to improving its anti-money laundering program. In light of Sigue’s remedial actions to date and its willingness to accept responsibility for its anti-money laundering failures, the government will recommend the dismissal of the charge in 12 months, provided the company fully implements the significant anti-money laundering and Bank Secrecy Act measures required by the agreement, and complies in all other respects with the terms of the agreement."
The requirements placed by the government on those doing money transfers in the United States is highlighted in this passage of the DOJ press release -
"The charges filed today arose out of transactions conducted by Sigue and its authorized agents from November 2003 through March 2005. Sigue operates by and through more than 7,000 money remitter agents across the country. During this time, more than $24.7 million in suspicious transactions were conducted through registered agents of Sigue, including transactions conducted by undercover U.S. law enforcement agents using funds represented to be proceeds of drug trafficking. Sigue filed suspicious activity reports (SARS) on the obviously structured transactions, but ultimately failed to identify the broader patterns of money laundering activity and prevent the unlawful activity from continuing. Sigue failed to create systems and procedures to identify suspicious financial transactions being conducted by related senders and beneficiaries, from the same or multiple remitter agent locations on the same day, or over several days, months, and, in some cases, years."
The agreement makes it very clear that companies, like Sigue, who are in the business of handling money transfers will pay dearly if they fail to implement systems that will assist the government in monitoring monetary transfer activities. One can anticipate a strong corporate compliance program being used at Sigue.
Friday, January 25, 2008
Former Monster Worldwide CEO Andrew McKelvey entered into a deferred prosecution agreement with the U.S. Attorney's Office for the Southern District of New York (available below) related to options backdating at the company. This is the second such deferral agreement involving an individual in a white collar crime case that I'm aware of, the other one involving former investment banker Frank Quattrone to settle obstruction of justice charges. While the Department of Justice has entered into these agreements with corporations with increased regularity, they are uncommon for individuals, with both coming from the same office and each involving special circumstances. For Quattrone, the government would have had to try him a third time, after the first proceeding ended with a hung jury and the conviction after the second trial reversed due to improper jury instructions -- and the case would be transferred to a new judge because of a perception of possible bias by the judge in the first two trials.
The reason given for the DPA with McKelvey is that he is suffering from a terminal medical condition, so that it would be unlikely a trial could take place on the charges, and even if there was a conviction it would be unlikely to survive under the abatement doctrine applied in federal cases. The DPA essentially requires McKelvey to obey the law for twelve months and restrict his travel. He acknowledged his involvement in backdating options at Monster Worldwide from 1997 to 2003, and the company's former general counsel earlier entered a guilty plea to charges related to the backdating and was cooperating in the investigation. A U.S. Attorney's Office press release (here) discusses the DPA, and the SEC also entered into a settlement with McKelvey that requires him to disgorge profits of $275,000 but does not impose a civil penalty due to his illness (see SEC Litigation Release here).
The disposition in this case appears to be based on the unique situation of the defendant, and does not seem to signal a trend toward using DPAs to resolve cases involving individuals involved in corporate misconduct. I suspect, however, that defense lawyers may try to push for such dispositions in the future for individual clients in addition to corporations, and it will be interesting to see if these agreements become more common. (ph)
Friday, January 11, 2008
A standard feature of most deferred and non-prosecution agreements involving corporations is the appointment of an outside monitor to ensure the company's compliance with the terms of the settlement, which often includes increased internal controls and other changes to the line of business that triggered the investigation. These agreements have become the norm these days, and hardly a month goes by without an announcement that a case has been resolved and a monitor appointed. There are no rules related to DPAs, with each U.S. Attorney's Office and the Department of Justice sections pretty much on their own regarding the particulars of the agreement. The "Wild West" aspect may be coming to an end, however, as the Department disclosed that it is looking at adopting internal guidelines for the selection of monitors and the standards for entering into DPAs. This comes on the heels of Congressional pressure to rein in the discretion of U.S. Attorneys, specifically the U.S. Attorney in New Jersey, who picked the monitors for five medical implant suppliers as a condition of settling a case involving improper kickbacks. The tipping point was the revelation that one of the five, former Attorney General John Ashcroft, the monitor for Zimmer Holdings, will be paid anywhere from $29 million to $52 million for the work by his firm. These positions can be quite lucrative, and as I discussed in an earlier post (here), the monitored company has little leverage in controlling the costs of the monitorship because it has a powerful incentive to cooperate at almost any cost to get out from under the DPA.
Congress has started to weigh in on the matter. Letters from the chairmen of the House and Senate Judiciary Committees to Attorney General Mukasey seek information about the appointment of monitors. Senator Leahy's letter (here) states, "Please provide the Judiciary Committee with a list of all contracts, including dollar amounts, awarded since 2001 to outside lawyers retained by companies for monitoring compliance with out-of-court settlements reached in criminal investigations between companies and the Department. Please also explain the procedure followed to select the person or firm monitoring compliance." The monitors work for the company, not the federal government, so it is unlikely the Department of Justice has access to most contracts for serving as a monitor. The Department has little interest in getting involved in such details, so to gather that information the Committee may have to contact each company, a much more laborious process. Regarding the procedure for selection, the simple answer is that there does not appear to be one, or at least each district has its own process. The promise of Congressional hearings will likely push the Department of complete its internal guidelines as soon as possible to avoid having legislation proposed on the issue.
One appeal of DPAs has been the fact that they are subject to almost no outside oversight: the judiciary does not become involved in the negotiation or approval of the agreement because it is only a contract between the parties, and there have been no general guidelines by the Main Justice about what types of cases are appropriate for resolution by a DPA. That will change in the near future now that the agreements, especially the appointment of monitors, has come under greater scrutiny. An interesting question will be whether greater regulation means these agreements will be used less frequently. A Newark Star-Ledger story (here) discusses the situation. (ph)
Monday, January 7, 2008
A new item on SSRN provides some interesting statistics on deferred prosecution agreements. AUSA Ryan McConnell (not writing on behalf of the department) and Lawrence D. Finder of Haynes & Boone posted a piece entitled, "Annual Corporate Pre-Trial Update 2007." They present three trends from 2007.
- "First, the number of corporate pre-trial agreements rose sharply from 2006 to 2007."
- "Second, the number of corporate pre-trial agreements containing attorney client privilege and work-product waivers has declined significantly."
- "Finally, two thirds of all agreements involved violations of either the Foreign Corrupt Practices Act (FCPA) or the federal health care laws."
The piece provides a detailed analysis of each of these conclusions.
Sunday, January 6, 2008
Just a week ago the deferred prosecution agreement between DOJ and University of Medicine and Dentistry of New Jersey ended. But a news report (Newsday-AP) is saying that the monitor's report does not give this medical facility a completely clean bill of health. (see here).
Wednesday, December 19, 2007
New Jersey Congressman Bill Pascrell, Jr., has proposed that the House Judiciary Committee and the Department of Justice work together on legislation, or at least adopt internal policies, to guide the drafting and implementation of deferred prosecution agreements. Hardly a month goes by without a DPA or non-prosecution agreement being reached with a company under investigation, the most recent one in the District of Rhode Island with the local Blue Cross & Blue Shield insurance provider related to improper payments to elected officials (see earlier post here). While these agreements are now the preferred means for resolving a wide array of corporate crime investigations, there are no guidelines for when a company can receive one or how the outside monitors, a common feature of most agreements, should be selected and compensated.
Representative Pascrell submitted to the Committee and Department a Statement of Principles on Deferred Prosecution Agreements that outlines four areas that should be addressed:
- Require guidelines on deferred prosecution agreements;
- Restore judicial oversight of deferred prosecution agreements;
- Take the selection of federal monitors out of the hands of U.S. Attorneys;
- Require full disclosure of deferred prosecution agreements.
A letter to Attorney General Mukasey from Congressman Pascrell (available below) notes that these issues could be addressed by internal DoJ guidelines, but at this point there has not been any apparent move in that direction. Now that Congress has started to pay attention to DPAs, the issue most likely is whether future regulation is done internally or through legislation. For the U.S. Attorneys who have enjoyed substantial freedom in crafting these agreements, the process of negotiating and implementing DPAs probably will get a bit more complicated. (ph)
Saturday, December 15, 2007
The on-going corruption probe in Rhode Island -- dubbed Operation Dollar Bill -- snared another non-profit when Blue Cross & Blue Shield of Rhode Island entered into a deferred prosecution agreement with the U.S. Attorney's Office. The case involves payments by BCBSRI to three members of the state Senate while the insurer was lobbying for favorable legislation. The illicit payments involved $75,000 to a communications company for a cable television show one senator hosted, $175,500 to a second Senator for 10 million paper bags for a pharmacy promotion by BCBSRI but only 2 million were delivered, and $400,000 in insurance commissions to the president of the state Senate.
The DPA is similar to others we are seeing with increased regularity. BCBSRI will pay a $20 million fine, which will go to a foundation to be used to provide affordable health services, and must appoint an independent monitor with the U.S. Attorney's approval. The attorney-client privilege waiver provision is a bit more onerous than I've seen in recent DPAs. BCBSRI agrees not to assert the attorney-client privilege or work product protection for any factual material generated in its internal investigation, except for communication with counsel about the criminal investigation. Another provision states that providing the materials does not constitute a waiver of the protections as to third parties, but that may be worthless under the majority rule on selective waiver.
Prior to the disclosure of the DPA, four BCBSRI executives were terminated by the company, and I suspect we will see one or more indicted on corruption charges in the near future. Two of the state Senators who received money from the company have entered guilty pleas, and Roger Williams Medical Center, a Rhode Island hospital caught up in Operation Dollar Bill, got its own DPA in 2006, one of the first cases involving a non-profit organization. (ph)