This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.
Tommy Lewis died last week. For those of you uninitiated in college football, Lewis was an Alabama football player who jumped up off the Alabama bench to tackle Rice University halfback Dicky Maegle, who was scampering untouched down the sideline for a touchdown in the 1954 Cotton Bowl. Lewis’ off-the-bench tackle led to a flag and the referees’ awarding Maegle a 95-yard touchdown on the play. Why did Lewis do it? As reported in his obituary in the Houston Chronicle, Lewis always maintained he was “too full of Alabama.” Maegle, perhaps more charitably, said, “He was a good guy who got caught up in the moment and the excitement.”
I thought about Maegle and Lewis when I was re-reading and considering the recent remarks of Assistant Attorney General for the Criminal Division Leslie R. Caldwell at the recent Ethics and Compliance Officers Association (ECOA) Conference. As Mike Volkov said in his post on Tuesday, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) communicate quite clearly what their enforcement priorities are; one does not have to read tea leaves, it is out there in black and white for all to see and hear. Caldwell’s remarks would seem to follow Volkov’s observation.
Caldwell made it clear that the DOJ will prosecute individuals for violations of the Foreign Corrupt Practices Act (FCPA). In her remarks she said, “When criminal misconduct is discovered, a critical factor in the department’s prosecutorial decision making is the extent and nature of the company’s cooperation. The department’s Principles of Federal Prosecution of Business Organizations provides that prosecutors should consider ‘the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents.’”
Recognizing that “Corporations do not act, but for the actions of individuals” Caldwell then laid down some quite strong prescriptions about which compliance practitioners need to be cognizant. Caldwell stated, “Now let me flesh out the often-discussed, but sometimes poorly understood, concept of cooperation. Most companies now understand the benefits of voluntarily disclosing the misconduct before we come asking, and the benefits of conducting an internal investigation and providing facts about the misconduct to the government. But companies all too often tout what they view as strong cooperation, while ignoring that prosecutors specifically consider ‘the company’s willingness to cooperate in the investigation of its agents.’”
She went on to add, “In all but a few cases, an individual or group of individuals is responsible for the corporation’s criminal conduct. The prosecution of culpable individuals – including corporate executives – for their criminal wrongdoing continues to be a high priority for the department. For a company to receive full cooperation credit following a self-report, it must root out the misconduct and identify the individuals responsible, even if they are senior executives.”
Fortunately, the DOJ is not asking for undercover corporate sting operations because, as Caldwell explained, “We are not asking that you become surrogate FBI agents or prosecutors, or that you use law enforcement tactics like body wires. And we do not need to hear you say that executive A violated a particular criminal law. All we are saying is that we expect you to provide us with facts. We will take it from there. But a company that interviews its employees in an effort to whitewash the facts or spread the company’s narrative spin risks receiving any cooperation credit.”
This is about as clear a warning as you can expect to receive. But the difficulty it puts companies in is in regard to their internal investigations. Last week, writing in the Wall Street Journal (WSJ) in an article entitled “Are Internal Bribery Probes Private?” Joel Schectman explored the issue of whether such investigations are privileged in the context of a current individual FCPA prosecution. In the matter of Joseph Sigelman, the former Chief Executive Officer (CEO) of PetroTiger Ltd. Co., Schectman reported that “Prosecutors say the payments of approximately $333,500 to the wife for ‘consulting services’ was actually a bribe to her husband to win a contract for PetroTiger worth around $39.6 million.”
Some or all of the underlying facts were turned over to the DOJ by PetroTiger’s internal investigation. The Defendant Sigelman wants to obtain copies of whatever PetroTiger turned over to the DOJ, arguing that the company waived any claim of attorney/client privilege “when it divulged the investigation’s findings to third parties, including officials of the United States.” The company has refused to hand over its internal investigation to the defendant based on this claim of attorney/client privilege.
What happens if a company or its law firm gets the investigation wrong and falsely accuses an individual? Should the company be protected? That is the issue currently before the Texas Supreme Court in libel case Shell v. Writt. It involves our old friend Panalpina Inc. and its customer Royal Dutch Shell. David Smyth, in a post entitled “Texas Court of Appeals Has Put Some FCPA Internal Investigations in an Awkward Spot,” said that the DOJ contacted Shell about its dealings with Panalpina. Sometime later, “Shell agreed to conduct an internal investigation into its dealings with Panalpina.” Smyth noted that, “Shell submitted an investigative report that pointed the finger at Writt. Specifically, Shell said Writt had been involved in illegal conduct in a Shell Nigerian project by recommending that Shell reimburse contractor payments he knew to be bribes and failing to report illegal contractor conduct he was aware of.”
Writt sued Shell for libel and Shell defeated Writt at the trial court on the basis that it had an “absolute privilege to say what it did in its investigative report to the DOJ.”
However, a Texas Court of Appeals reversed the trial court ruling, holding that absolute privilege does not apply where a party voluntarily turns over information to a prosecutor before a judicial proceeding is initiated or contemplated. As Smyth explained, “In the court’s view, [the] DOJ was acting purely in a prosecutorial and non-judicial capacity.” Shell has appealed this matter to the Texas Supreme Court, which has accepted the case for review.
There are several difficult issues from the facts of this case. Smyth points to one when he ended his piece; he writes, “FCPA investigations these days are a different animal, and probably deserving of different treatment by the courts. As of now, a company conducting an internal FCPA investigation in Texas has to ask, what do we do if an investigation reveals one of our employees as a bad actor? Do we say as much in the report we turn over to the government, as the government surely expects? If we do, are we signing on for libel litigation by the employee?” But now Caldwell has made clear that the DOJ expects companies to “identify the individuals responsible, even if they are senior executives.” If you are one of the individuals so identified, are you entitled to know what the accusations against you might be? What if the company’s lawyers got it wrong? Should they have a duty?
Moreover, there are a plethora of procedural protections available to criminal defendants not available to civil defendants or even those who are the subject of internal corporate investigations. Should a Miranda warning now be given during internal corporate investigations? Is the right to remain silent and not self-incriminate oneself available in such an investigation? In paper entitled “Navigating Potential Pitfalls in Conducting Internal Investigations: Upjohn Warnings, ‘Corporate Miranda,’ and Beyond” Craig Margolis and Lindsey Vaala, of the law firm Vinson & Elkins LLP, explored the pitfalls faced by in-house and outside counsel and corporations when an employee admits to wrongdoing during an internal investigation where such conduct is reported to the U.S. government and the employee is thereafter prosecuted criminally under a law such as the FCPA.
Employees who are subject to being interviewed or otherwise required to cooperate in an internal investigation may find themselves on the sharp horns of a dilemma requiring either (1) cooperation with the internal investigation or (2) the loss of their jobs for failure to cooperate by providing documents, testimony or other evidence. Many U.S. businesses mandate full employee cooperation with internal investigations or those handled by outside counsel on behalf of a corporation. These requirements can exert a coercive force, “often inducing employees to act contrary to their personal legal interests in favor of candidly disclosing wrongdoing to corporate counsel.” Moreover, such a corporate policy may permit a company to claim to the U.S. government a spirit of cooperation in the hopes of avoiding prosecution in “addition to increasing the chances of learning meaningful information.”
Where the U.S. government compels such testimony, through the mechanism of inducing a corporation to coerce its employees into cooperating with an internal investigation by threatening job loss or other economic penalty, the in-house counsel’s actions may raise Fifth Amendment due process and voluntariness concerns because the underlying compulsion was brought on by a state actor, namely the U.S. government. Margolis and Vaala note that by utilizing corporate counsel and pressuring corporations to cooperate, the U.S. government is sometimes able to achieve indirectly what it would not be able to achieve on its own – inducing employees to waive their Fifth Amendment right against self-incrimination and minimizing the effectiveness of defense counsel’s assistance.
All of the above would seem to make clear the need for companies to get their internal investigations done right. If you are going to receive credit from the DOJ going forward, your investigations must be done thoroughly and in a timely manner and must provide to the DOJ the information that Caldwell has laid out that they want. At least currently in Texas, a company has to get it right or risk being sued if they mis-identify a potential criminal actor.
Tommy Lewis and Dicky Maegle? Lewis made a mistake, probably carried away in the heat of the moment. What did Maegle have to say about him on the occasion of his death? “He was very remorseful, and I thought he was sincere. I liked him. We became friends.” Let’s hope your employees still like your company at the end of an internal investigation.
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