Jacobson: Immunity Plan Will Raise Enforcement Standards

We spoke this week with Billy Jacobson, left, the former assistant chief for FCPA enforcement at the DOJ.

He thinks companies able to meet a five-part good-faith compliance test shouldn’t face FCPA charges.

His five elements are self reporting, clean hands by senior management, cooperation with the government, robust remedial measures, and an in-place compliance program before any violations happened.

Jacobson, now co-general counsel and chief compliance officer at Weatherford International Ltd., answered these questions:

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What are the chances of the DOJ making a change in enforcement policy along the lines you propose?

I really don’t know, but I think the chances of a DOJ policy change are greater than legislation actually being passed amending the statute. If any change is going to be made to either the statute or the enforcement strategy of the Fraud Section, I think the ideas behind this proposal stand a chance. The key is that unlike some other proposals, it allows for prosecution of individuals and, indeed, I believe it would lead to far more prosecutions of individuals than we see now.

A few weeks ago, Secretary of State Clinton said about the FCPA, ‘We don’t need to lower our standards. We need to work with other countries to raise theirs.’ Is your proposal a lowering of our FCPA enforcement standards?

Not at all. In fact, it could easily be seen as a raising of standards because it gives companies even more reason than they have now to implement robust compliance programs. The proposal will also lead to more cases against individuals, I believe. Both of these results are what we want if the real goal is to reduce corruption.

How can business groups, companies, and individuals show their support for your proposal in ways that might influence the decision-making at the DOJ?

I think the conversation that’s happening right now with the Chamber of Commerce, Congress, and the media all getting involved is very healthy regardless of the way it plays out. Some companies are obviously behind the Chamber’s efforts and they’re expressing their views in that way. Other companies are focusing on big media outlets. Given the abundance of compliance-related media these days, like the FCPA Blog, individuals like myself have plenty of outlets to add to the debate. Hopefully, this will continue as I think you cannot have too many serious-minded people debating the issue.

Thanks for talking with us.

My pleasure.