Assistant Attorney General Lanny Breuer engaged business leaders in a lively FCPA roundtable Wednesday at an event I hosted along with Brad Smith, General Counsel of Microsoft. As the Chief of the Criminal Division, Breuer leads DOJ’s enforcement efforts under the FCPA.
I invited Lanny to come West after he and Rob Khuzami published the FCPA Resource Guide last fall. Lanny jumped at the opportunity, and Wednesday spelled out DOJ’s enforcement priorities, gave a behind-the-scenes look at the drafting of the Resource Guide, and fielded hard-nosed questions from general counsel from leading U.S. companies based on the West Coast.
- Effective Compliance matters: Lanny emphasized the importance of effective compliance programs, and cited a recent example where a managing director at Morgan Stanley was prosecuted, while the company was not charged or cited because DOJ concluded the director’s conduct was contrary to an effective compliance program. Lanny’s comments echoed the emphasis on effective compliance programs in the Resource Guide.
- Mergers and Due Diligence: One GC asked Lanny about the risks a responsible corporation bears when acquiring a foreign company. Acquiring companies who investigate, discover and report past wrongdoing by the acquired company need not fear sanction if they implement effective compliance going forward, Lanny explained – although individual wrongdoers at the acquired company may be held accountable.
- Hardball investigative techniques helped fuel increased FCPA enforcement: Lanny says that DOJ purposely enlisted violent crime prosecutors to join the ranks of the Fraud Section to bring hardball tactics in to bear in cases — including wiretaps and use of cooperating witnesses to dismantle organizations.
- Drafting the Guide Helped Harmonize Enforcement: Spending hundreds of hours together with SEC officials while drafting the Resource Guide helped DOJ and SEC harmonize their enforcement efforts, Breuer said — the effort at transparency prompted joint consideration of priorities in a way never before undertaken.
More broadly, Lanny argued that to some extent, “myth has overtaken reality” in the public perception of FCPA enforcement: DOJ simply does not pursue enforcement over a “nice bottle of Merlot,” Lanny explained, urban (corporate) myth notwithstanding.
Lanny called the appearance his “Swan song” — the event was the last trip he’ll take as AAG for the Criminal Division, and it is a fitting final chapter, given his commitment to aggressive enforcement balanced by engagement, outreach, and transparency. I worked closely with Lanny on a range of issues while serving as U.S. Attorney for Oregon, and was delighted to bring him to Seattle to meet with general counsels from dozens of leading West Coast companies.
Dwight C. Holton recently joined the Compliance, Investigations and Criminal Litigation Practice Group at Lane Powell, PC. Attorney General Holder appointed Holton to serve as U.S. Attorney for Oregon in 2010. As U.S. Attorney, Holton served on the White Collar and Fraud Subcommittee, the Terrorism and National Security Subcommittee, and the Environmental Crimes Work Group of the Attorney General’s Advisory Committee. Before being appointed U.S. Attorney, Holton served as an AUSA in the District of Oregon from 2004-2010, where he prosecuted complex white collar crime, environmental crime, and served as Chief of the Criminal Division. Holton prosecuted violent crime, racketeering and terrorism cases as an AUSA in the Eastern District of New York from 1997-2004.