The head of the Department of Justice (DOJ) Criminal Division warned Friday that Foreign Criminal Practices Act (FCPA) prosecutions will increasingly target individuals wrongdoers, rather than corporations. Assistant Attorney General Leslie Caldwell, speaking at the American Conference Institute’s National Conference on the Foreign Criminal Practices Act, outlined a two-prong approach to attack foreign corruption:
- Bring those who pay bribes to justice “no matter how rich and powerful they are,” and;
- Attack corruption at its source by prosecuting and seizing the assets of corrupt foreign officials.
Caldwell warned that DOJ efforts will focus on “bribes of consequence” — payments that fundamentally undermine confidence in markets and governments. Focusing on these types of cases allows the DOJ to show corporate executives that if they participate in a scheme to improperly influence a foreign official, they will “personally risk the very prospect of going to prison.”
A key theme of Caldwell’s remarks was the increased use of the Department’s Kleptocracy Asset Recovery Initiative through the DOJ asset forfeiture money laundering section. Caldwell highlighted the fact that since 2009, FCPA related cases have generated approximately $3 billion in penalties and criminal forfeitures. Caldwell highlighted several cases, including the recent settlement in which a foreign official forfeited millions of dollars in assets, including the crystal-covered glove made famous by Michael Jackson in his Bad Tour.
Caldwell also noted that FCPA efforts have been enhanced by cooperation and collaboration with several other countries who have allowed them to fight multi-jurisdictional bribery schemes. She suggested that coordinated efforts send a powerful message that countries all over the world are now engaged in a fight that will hold individuals accountable for corruption, regardless of where they operate or reside.
Caldwell closed her remarks with a familiar theme — self-disclosure. She encouraged companies, and their counsel, disclose FCPA violations and to do so in a timely matter. She also encouraged corporations to conduct thorough internal investigations and noted that the DOJ would expect to corporations pursue “appropriate tailored investigations of the conduct.” She also outlined that the DOJ could require corporations seeking to benefit from self-disclosure to provide useful facts about the individuals responsible for the conduct, no matter how powerful they are. Her message was very clear; if you chose to cooperate, the DOJ will expect to hear not just what happened, but “who did what, when and where.” The DOJ will also expect a cooperating company to provide relevant documents in a timely manner, even if the documents are located oversees. Simply put, the quality and timeliness of cooperation matters.