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We support using BNP penalties for victim restitution

The recently announced BNP sanctions settlement is remarkable in so many ways: the behavior is outrageous, the $9 billion criminal penalty is record-setting, and 13 employees were terminated. However, the most interesting part of the story may be the idea that the DOJ is exploring ways to use the forfeited funds to compensate individuals who may have been harmed by the sanctioned regimes of Sudan, Iran and Cuba.

The DOJ press release announced that they’re inviting crime victims “to provide information describing the nature and value of the harm they suffered.”

And notice the broader trend here. Just a year ago, the DOJ reached a record $16 billion civil settlement with Bank of America for conduct relating to the financial crisis. But a remarkable $7 billion of that settlement was set aside to provide “relief to struggling homeowners, borrowers and communities affected by the bank’s conduct.”

There’s yet another dot to connect here: the criminal settlement with BP relating to the Gulf of Mexico oil spill: $4 billion, of which $1.6 billion was set aside for projects aimed to help the communities impacted by the spill.

Big settlements, major portions of which were set aside to help victims. Could the FCPA be next?

As a recently published series of posts on the BOTA Foundation explained, we’ve done it before. That series, authored by Aaron Bornstein (with a concluding post by Andy Spalding) was cautiously optimistic that the DOJ would be open to setting up future foundations as a way of directly assisting victims of corruption: the poor.

The BNP case, like BofA and BP before it, shows that the DOJ is already more than open to using penalty settlements to assist victims. For this, we believe the DOJ actions should be vigorously supported. We will be following how the restitution process actually works with great interest.


Aaron Bornstein was the Executive Director of BOTA Foundation, employed by a Washington, D.C. based NGO called IREX, from 2011 until its close in 2014. He can be contacted here.

Andy Spalding is a Senior Editor of the FCPA Blog and Assistant Professor at the University of Richmond School of Law.

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  1. Fully support this. Please let us know if there is a petition where we could submit our names and that could allow us professionals to evidence our support. For too long the muted end victims affected by such unconscionable corporate behaviour have been left without recompense, or even recognition of the harm that has been done to them.

  2. Good luck trying to equitably identify "victims". Unlike other areas of law where there are breadcrumbs to trace an injured party back to another party's criminality (consumer fraud cases, product recalls, etc.), how would reparations be doled out in the BNP case? I applaud the idea but I'm doubtful of equitable follow-through.

  3. I must admit, being a student of political science, I am at least a bit worried by having unelected enforcement officials making policy decisions about how to spend funds. Determining exactly who were the victims of such systemic violations is not simply an administrative task; there will be important policy decisions to be made.

    When the fines were small this could be considered an incidental function. But when the amounts are in the billions, this is cause for much more consideration. Sure, we are often frustrated by the slow process of legislative deliberation, but that is the governmental system we have chosen. We live in a democracy, not a government of selected elites who choose to spend money as they think best. Enforcement officials should be enforcing the law and taking steps to prevent violations. Courts should be hearing disputes and resolving conflicts. But they are not legislatures and should not be selecting where to dole out billions of dollars in funds.

    Giving this level of power to enforcement officials should at least cause us to stop and think more about the process. They were not trained in how to do this, they were not selected for this, and they are not accountable to the public for what they do. I find this at least a cause for concern.

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