International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Tuesday, March 12, 2019

Deputy Attorney General Rod J. Rosenstein Delivers Keynote Address on FCPA Enforcement Developments

Thank you, Alexandra, for that kind introduction. 

It is fitting that one of my final speeches in this job is about promoting compliance and preventing corruption. I started my legal career as a public corruption prosecutor. I planned to spend a few years representing the United States before entering the private sector. That was almost 30 years ago. 

People talk about the revolving door between government and the private sector. The door never revolved for me. It was one way in, and it will be one way out. There are many good reasons to work for the United States government. But the work that you do – fighting corruption and creating a fair opportunity for honest American citizens who work hard and play by the rules – that is why I came here in the first place.

Your work also resonates with me because I attended an undergraduate business school, where I studied management, marketing, accounting, and finance. I planned to put those skills to use in corporate America. Law enforcement took me in a different direction, but understanding business remains central to my work.

Financial expertise is important to prosecutors because you need to comprehend transactions in order to recognize when they are fraudulent. And familiarity with the practical needs of doing business sometimes allows you to spot an innocent explanation for conduct that otherwise may appear suspicious.

But financial incentives can and do lead corporate officers to engage in corruption. It can be difficult to resist those incentives when public officials expect personal benefits. If we fail to enforce the rules, corrupt businesses will enjoy and profit from a competitive advantage. Rules that are not enforced can be worse than no rules at all, because honest people follow them anyway, giving corrupt people a cost-free competitive advantage.

A desire to promote morality is reason enough in itself to prevent corruption, but there is also a pragmatic benefit.

The forecasting models that I learned in business school rely on hypothetical “efficient markets” that benefit customers because prices reflect all relevant information. But corrupt markets are never efficient. Corruption does not only cause the good guys to lose business opportunities. Corruption produces excess profits for wrongdoers, at the expense of consumers. It raises prices and reduces innovation.

When I served as United States Attorney for Maryland, we conducted a lengthy criminal investigation that documented a widespread pay-to-play culture in one of our largest counties. When that sort of culture becomes engrained, honest businesspeople take their investments elsewhere. It happens in cities. It happens in states. In some places, it happens in nations.

Criminal prosecutions are part of the solution. Criminal cases reveal illegal schemes to the public and may cost corrupt officials their jobs. But every system remains vulnerable to people who pursue their own personal interests. So the key to promoting a culture of integrity is to build structures that resist corruption, and not just to hope for honorable employees.

The United States Constitution provides a good example. It aspires to establish a government that promotes the interests of the governed, rather than the interests of their temporary leaders. All government officials take an oath pledging loyalty to the public interest. Reliance on personal integrity and cultural norms is part of the strategy to preserve liberty. But it is supported by structural protections. The enforcement mechanism is crucial, as James Madison recognized in Federalist 51, because “you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The Department of Justice uses similar protections. We instill a culture of ethical conduct from the first day employees take the oath of office – an oath to well and faithfully execute the duties of their office. Our Department’s name contains a moral value, and we reinforce it. In the words of a classic country song, “You’ve got to stand for something, or you’ll fall for anything.” We teach our employees what it means to stand for Justice.

As a result, if you walk into any branch of the Department of Justice, you will find honorable, ethical, and admirable people.

But no organization with 115,000 employees is flawless. We maintain a culture of integrity, not merely a culture of trust. We do not assume that everyone will obey their oath. We rely on auxiliary precautions. We need mechanisms to correct mistakes and punish wrongdoers.

Our Professional Responsibility Advisory Office provides nationwide guidance about ethical responsibilities, and we designate experienced attorneys to serve as Professional Responsibility Officers in each U.S. Attorney’s Office.  Everyone in the Department participates in annual ethics training.

We also maintain professional, nonpartisan internal watchdogs. There are Offices of Professional Responsibility in Main Justice and in each of our law enforcement agencies, and an Office of the Inspector General with 475 employees and jurisdiction over the entire department. The Inspector General has criminal investigative authority as well as administrative authority. If an investigation requires criminal process, the Inspector General’s armed federal agents work with U.S. Attorneys to obtain grand jury subpoenas and search warrants, just like FBI agents. Our internal watchdogs help us to deter waste, fraud, and abuse.

Most importantly, Department of Justice employees develop the discipline imposed by the need to prove allegations to a judge and jury in an open courtroom, with credible witnesses and admissible evidence. That gives us a powerful incentive to seek the truth, and only the truth, wherever it may lead.

Ensuring the integrity of governmental processes is essential to building public confidence in the rule of law, and it is supported by the commitment of private sector leaders. 

I am grateful to TRACE International and its member companies for your work to uphold the rule of law.

President Donald Trump issued a proclamation last year that summarized what the rule of law is about. It said that “we govern ourselves in accordance with the rule of law rather [than] … the whims of an elite few or the dictates of collective will.”

Our nation’s founders did not take the rule of law for granted. First, they fought a war on their own soil to break free from rule by a foreign monarch. Then they operated for a decade under the Articles of Confederation, with a weak central government that proved incapable of meeting its obligations. So, in 1787, the Constitutional Convention met in Philadelphia to establish rules for a new central government. The founders agreed on a written Constitution establishing structural protections to promote the rule of law.

 But the concept of a government bound by law to serve the people is not universal.

I visited the nation of Armenia in 1994, when it was emerging from seven decades of Soviet domination. I gave a lecture about public corruption laws. When I finished, a student raised his hand. He asked, “If you can’t pay bribes in America, how do you get electricity?”

That question illustrated how the young man learned to think about his society.

Businesses that bribe officials by offering personal benefits in return for the favorable exercise of government power undermine legitimate businesses and cheat citizens. It sets off a race-to-the-bottom and leads to increased prices, substandard products and services, and reduced investment. 

Before the enactment of the Foreign Corrupt Practices Act in 1977, paying bribes was an ordinary aspect of doing business overseas. Corruption was rife in many parts of the world.  Some European countries allowed companies to deduct bribes on their corporate tax returns as business expenses.

Congress passed the FCPA law with bipartisan support, and the marketplace adapted to America’s effort to establish and enforce anti-bribery laws.

Two decades later, the Organization for Economic Co-operation and Development adopted an Anti-Bribery Convention, establishing legal standards to prohibit bribery of public officials in international business transactions. The United States was one of the first signatories.  Our leadership encouraged other major world powers to commit to doing business with integrity.

Last year, the Department of Justice increased its prosecutions of white collar crime and other priorities. Thanks to a series of initiatives and policy changes, we are making corporate criminal enforcement more effective and efficient.

We announced charges against more than 30 individual defendants last year in FCPA-related cases, and convictions of 19 individuals.

Last month, we indicted a salesman and the president of an American company for allegedly paying bribes in Venezuela. They are charged for paying kickbacks to officials of a government-owned energy company.

That investigation led to charges against more than 30 individuals. Our Department received assistance from the Department of Homeland Security as well as our law enforcement colleagues in Switzerland and the Cayman Islands. That sort of international cooperation is essential to prohibit corruption by multinational corporations.

While pursuit of criminal and civil remedies against corporations is important, we should always focus on the individuals responsible for misconduct. Cases against corporate entities allow us to recover fraudulent proceeds, reimburse victims, and deter future wrongdoing. But the deterrent impact on the individual people responsible for wrongdoing is sometimes attenuated in corporate prosecutions. The most effective deterrent to corporate criminal misconduct is identifying the people who commit crimes and sending them to prison. Absent extraordinary circumstances, a corporate resolution should not protect individuals from criminal liability.

Critics who describe our policy changes as going soft on corporate crime completely miss the point. The goal of criminal enforcement should not be to pursue a small number of cases and set a new record each year for the largest check extracted from shareholders. Enforcement should not be like a random lightning strike. When there is a low risk of detection and enforcement against the company, and a minimal risk of punishing individuals, that does not deter corporate officers from pursuing their own personal profit though criminal activity. We aim to incentivize companies to report crimes, disgorge illegal proceeds, take remedial actions, and identify accountable officials so we can prosecute them – and do it all promptly. That will result in less corporate crime in the future.

We should focus on the people who play significant roles in setting a company on a course of criminal conduct. We want to know who devised and authorized criminal schemes, and hold them accountable.

Our individual accountability policy is designed to drive change, and lead more companies to implement meaningful proactive compliance programs. Change can be difficult in large organizations. But the ability to adapt to change is an essential survival skill. 

Nassim Nicholas Taleb coined the term “anti-fragile” to describe the most successful business model. He points out that the opposite of fragile is not merely robust or resilient. Anti-fragile things do not just bounce back in response to stress, like rubber bands. Instead they grow stronger, like muscles. 

Complacency can be deadly when circumstances change, and circumstances always change. Taleb tells a story that illustrates the danger of forgetting that past performance is never a reliable indicator of future outcomes: “Consider a turkey that is fed every day.  Every … feeding [enhances] the bird’s [confidence] that it is the general rule of life [that humans always] ‘look… out for its best interests’ ….  On the … [day] before Thanksgiving, something unexpected will happen to the turkey.”  Taleb refers to that as a “Black Swan” event – an occurrence so low in probability that we ignore the risk, but so great in impact that it renders projections moot.

Corporations need to prepare for unexpected events, but government should provide certainty when possible.

In FCPA cases, we incentivize exemplary corporate conduct. If companies self-report violations, cooperate with investigations, and remediate harm, we reward them with a presumption that we will decline to pursue the company with criminal charges. Instead, we focus our limited resources on individuals, and on companies that fail to take compliance obligations seriously. 

When criminal liability is not at issue and corporations seek expeditious resolutions, our attorneys should negotiate reasonable civil settlements that remedy the harm and deter future violations. If a company meaningfully assists the government’s investigation and candidly provides details about culpable officials and other employees most responsible for the misconduct, our civil attorneys have discretion to offer credit.

In all cases, we should make the punishment proportional to the violation. Companies in highly regulated industries may face multiple enforcement actions for the same conduct, so we try to ensure that corporate resolutions resulting from parallel or joint investigations are reasonable and proportionate.

If government agencies fail to coordinate and instead “pile on” with multiple penalties for the same conduct, it deprives the company of the certainty and finality available through a settlement. If a company seeks in good faith to resolve problems and move forward, it is appropriate when negotiating a settlement to consider the impact on innocent employees, customers, and investors, along with the need for deterrence. Resolving cases expeditiously and conclusively is also important because it allows government agencies to uncover and address new schemes instead of devoting additional enforcement resources to established violations.

We want our attorneys to coordinate their investigations to avoid the unnecessary imposition of duplicative fines, penalties, and forfeitures.  We also try to coordinate with other federal, state, local, and foreign enforcement authorities that want to resolve potential claims arising from the same misconduct.

Before I conclude, I want to talk about the importance of compliance programs, because law enforcement agencies achieve deterrence only indirectly. We prosecute criminal wrongdoing after it occurs. But a company with a robust compliance program can prevent corruption and eliminate the need for enforcement.

Most American companies take seriously their obligation to avoid illegal business practices.  They want to do the right thing. They need our help to protect them from devious competitors that seek unfair advantages by breaking the law.

To reduce white collar crime, we need to encourage companies to report suspected wrongdoing to law enforcement, and to resolve any liability expeditiously.

Corporate America should regard law enforcement as an ally. In turn, the government should provide incentives for companies to engage in ethical behavior and to assist in federal investigations. Law enforcement efforts are most effective when we build bridges with law-abiding businesses.

The government should provide incentives for companies to engage in ethical corporate behavior. That means notifying law enforcement about wrongdoing, cooperating with government investigations, remedying past misconduct, and preventing future misconduct by implementing a robust compliance program. 

The safest communities are self-policing. They do not rely on continual government enforcement.

We should encourage and support the development of self-policing mechanisms for corporate crime. Law enforcement agencies should give the greatest consideration to companies that establish effective compliance programs in advance, because it frees our agents and prosecutors to focus on people who commit more serious financial crimes or pose other threats to America. The fact that some misconduct occurs shows that a program was not foolproof, but that does not necessarily mean that it was worthless. We can make objective assessments about whether programs were implemented in good faith.

In all cases, compliance mitigates risk, making companies more valuable and less likely to encounter unanticipated costs from protracted investigations and penalties. When a company establishes a culture of integrity, it creates value. Compliance is an investment. Ethical, law-abiding companies attract better investors, employees, and customers. People want to do business with companies that are honest and reliable.

An effective compliance program is not just about a written policy or a regular training program. Companies should focus on how their compliance programs work in practice.

In Shakespeare’s play Henry the Fourth, a prince brags about his ability to call up ghosts. He proudly claims: “I can summon spirits from the vasty deep.” His skeptical friend mockingly replies, “Why, so can I, or so can any [one]; But [the question is,] will they come when you … call for them?”

Similarly, just talking about compliance is meaningless. A culture of compliance needs to be integrated into corporate policies. Employees should be trained and encouraged to think about compliance issues when making business decisions, and there should be regular audits to identify problems.

Finally, in the spirit of promoting a culture of integrity, I want to leave you with the wisdom of this ancient proverb: if you desire to know a person’s character, consider his friends. You can help protect your business by using caution when selecting associates and by ensuring appropriate oversight. Always make sure that you can stand proudly with the company you keep. 

https://lawprofessors.typepad.com/intfinlaw/2019/03/deputy-attorney-general-rod-j-rosenstein-delivers-keynote-address-on-fcpa-enforcement-developments.html

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