High ranking officials in the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) said on March 12 that companies that fail to self-report overseas bribes will face tougher Foreign Criminal Practices Act (FCPA) fines.
While speaking at the Georgetown Law Center Corporate Counsel Institute in Washington, Patrick Stokes, deputy chief of the DOJ’s FCPA Division, and Kara Brockmeyer, the SEC FCPA chief, both cited real-life examples of how companies that did not self-report foreign bribes received significantly higher fines and penalties.
Stokes pointed to French conglomerate Alstom SA, which paid $772 million in fines, the largest FCPA fine in history, for an Asian bribery scheme. Stokes stated that if Alstom SA had come forward and cooperated with the an investigation, prosecutors would have sought as little as $207 million in penalties, representing a 73% reduction from the Federal Sentencing Guidelines. He stressed “measurable and clear” benefits of self-disclosure and cooperation and quipped “You don’t need a forensic accountant. You don’t need a law firm to do this.”
Brockmeyer echoed Stokes’ comments and stated that “the point is there are significant dollars-and-cents savings for companies that self-disclose.” Brockmeyer cited the risks for not reporting violations have soared dramatically with whistleblower modifications to security laws under the Dodd/Frank Act, which entitle whistleblowers to receive up to 30% of a settlement. Brockmeyer stated that regardless of the motivation whistleblowers have for coming forward, “we do get quality information out of whistleblowers.”
In support of these comments, Stokes and Brockmeyer cited the DOJ’s recent settlement with Avon Products, Inc. relating to improper business practices in China. Avon agreed to pay a $68 million settlement, which included a 20% “discount” on the Sentencing Guidelines based on cooperation. Avon would have received a final fine of $42 million if the company had reported that it made $8 million in gifts from Chinese officials. Stokes reported that if Avon Products had refused to cooperate, it would have faced a fine of $142 million.
These comments came two weeks after the SEC announced the settlement made with Goodyear Tire & Rubber, which included $14.1 million in profit disgorgement and $2.1 million in penalties to settle allegations concerning African subsidiaries. Because Goodyear had disclosed the bribes before the investigation, Goodyear did not receive any fines for these charges.
