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BAE To Feds: Stop Moving The Goalposts

When BAE pleaded guilty in February to a one-count criminal information, it agreed to appoint a compliance monitor by the end of May. But that didn’t happen. BAE blamed the Justice Department for rejecting six qualified candidates; the DOJ blamed BAE for picking the wrong people. To which BAE responded: we followed your rules until you changed them.

BAE complained that the DOJ rejected as unqualified a couple of batches of candidates, “all of whom [from the first group] had served as members of the English judiciary, without even agreeing to conduct interviews or seeking additional information about them. The Department has also, thus far, declined to accept any one of the second group of candidates, who are highly accomplished and respected lawyers in the U.K., including a former Senior Partner of a leading British law firm.”

It sounds to us like a trans-Atlantic culture clash — two great nations once again separated by their common language.

It boils down to this: The DOJ naturally wants a monitor deeply familiar with U.S. law — including the Foreign Corrupt Practices Act, the Arms Export Control Act, and the International Traffic in Arms Regulation (ITAR), all of which, according to its plea deal, BAE had trouble complying with. BAE, though, says those specific laws weren’t mentioned in the plea deal’s description of the monitor, so why is the DOJ talking about them now?

This one’s easy. The DOJ agreed that BAE could appoint a U.K. citizen, which was culturally sensitive, but said the monitor had to be “acceptable” to both parties. Finding a U.K. citizen who really understands those three U.S. criminal laws was never going to be simple. But that word “acceptable” covers a lot of ground. It’s used by American lawyers who don’t want to list every specific requirement but leave some discretion to final decision-makers. Could a U.K. lawyer or former judge, even one with lots of white hair, who doesn’t know the FCPA, Arms Export Control Act and ITAR, ever be an “acceptable” BAE monitor? No way.

In any case, the special relationship is safe. The DOJ agreed to give BAE 90 more days. The feds will interview a couple of the candidates in early June and get back to BAE right away, in plenty of time for the company to meet its new August 31 deadline. That, at least, is what the two English-speaking legal teams think has been agreed.

Download a copy of BAE’s May 27, 2010 motion to extend the deadline to appoint a compliance monitor here.

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