The recent announcement that DOJ is taking applications for the newly vacated FCPA Chief position provides a timely opportunity to reflect on the history, growth and direction of the Unit as well as a chance to consider the unique game-changing possibilities that await an accomplished selectee.
Initially, there can be no doubt that the Fraud Section’s FCPA Unit is at a crossroads.
Since 2011 the Unit has tripled in size to now 30 prosecutors. Yet, over that same period, investigations seem to have stagnated, turnover remains unacceptably high and, consequentially, self-reporting businesses continue to face the potential for an onslaught of non-penalty costs that many view as objectively irrational. Recent developments, including the formation of three dedicated FBI international corruption squads and the Department’s invigorated Kleptocracy Initiative, offer a beacon of light to perhaps guide and enhance the future of effective FCPA enforcement.
A brief look at the legacy of past DOJ FCPA leaders might provide an appropriate perspective with which to evaluate the qualities of the future chief.
Peter Clark: The Godfather of FCPA. For more than 20 years Peter led DOJ’s FCPA enforcement efforts and guided the law’s development since its enactment. He was also the Department’s principal negotiator of the OECD’s anti-bribery convention and the Council of Europe Criminal Law Convention. Peter’s greatest contribution to the anti-corruption enforcement effort was in spearheading the adoption in 1997 of OECD’s landmark International Convention on Combating Bribery of Foreign Officials in International Business Transactions. It was that transformative convention that put the global spotlight on international anti-corruption enforcement efforts.
Mark Mendelsohn: The Father of Modern FCPA Enforcement. Following on the heels of Peter’s leadership legacy, Mark came to the FCPA Unit with a wealth of prosecutorial experience, having served both as an Assistant United States Attorney in the Southern District of New York and as a Senior Counsel in DOJ’s Computer Crimes and Intellectual Property Section. During his more than five-year stint as FCPA Chief, Mark built the Unit into a formidable force with 12 dedicated FCPA prosecutors in addition to corralling an entire FBI squad of dedicated agents. Mark’s yeoman’s effort in shepherding resolutions in Seimens, BAE Systems and Daimler AG had the greatest durational impact as those cases established the FCPA Unit as an ensconced and capable force, cemented the benefits of healthy working relationships with DOJ’s foreign law enforcement partners and brought anti-corruption compliance to the forefront for businesses engaged in international transactions.
Chuck Duross: The Golden Boy of FCPA Enforcement. Chuck came to the FCPA Unit in 2007 after having first developed a reputation as THE “go to” prosecutor at the US Attorney’s Office in Miami. His oversized reputation as a gregarious, intelligent and “take no prisoners” prosecutor made him the perfect choice to lead the Unit. Having also successfully led the single most visible FCPA prosecution of an individual, Congressman William Jefferson, Chuck was the perfect choice to lead the FCPA Unit as the focus turned to prosecution of culpable corporate executives, leading to a fourfold increase in their prosecution. Chuck’s deep law enforcement background, dogged work ethic and amiable personality bolstered the work of the Unit by enhancing relationships with US Attorneys’ Offices, deepening the partnerships with the SEC and FBI and broadening the Unit’s cooperative alliances with foreign law enforcement officials. In conjunction with the SEC, he also ushered in the groundbreaking FCPA Resource Guide. Perhaps Chuck’s greatest contribution, however, was maintaining extraordinarily high morale within the unit during a period of crippling oversight.
Patrick Stokes: The Experienced and Steady Enforcer. Patrick, an experienced AUSA, came to the Fraud Section in 2008 and quickly established himself as an exceptionally talented investigator and litigator rising through the ranks and becoming a Deputy Chief of the Securities Fraud Unit before being selected as Duross’ replacement. Patrick led by example, trying some of the most significant white collar cases in the country including that of Lee Farkas, CEO of mortgage lending giant Taylor, Bean & Whitaker. Patrick’s reputation as a stoic “can-do” prosecutor set an example for an ever-expanding FCPA Unit as he presided over some of the most successful corporate resolutions in FCPA, worked closely with the newly established FBI corruption units and fostered expanded cooperation with Kleptocracy Initiative prosecutors.
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This unrivaled legacy provides an appropriate backdrop with which to consider who should lead the Unit going forward. To bring that to fruition, three obvious qualifications ought to be rigorously examined to determine the potential effectiveness of the FCPA Unit’s next Chief.
1. Experience. Without a doubt, recent long-term white collar prosecution experience is the most important attribute required for any candidate for the FCPA Chief position. Before someone can effectively and efficiently lead prosecutors in the FCPA arena, they must understand that prosecuting complex international financial crimes takes years of practice and training. The import of this required depth of current experience cannot be overstated.
Prosecutors investigating and charging complex transnational economic crime cases against either corporations or executives face a myriad of consequential challenges, both domestic and foreign, on a daily basis The ability to move forward effectively and efficiently requires the ability to “see around corners,” i.e., the capacity to understand whether the potential bogey men are actually worrisome. Years of training and on the ground experience are the only antidote.
We also know that today, the costly, sluggish pace of corporate investigations continues to plague the FCPA Unit. Because of growth and attrition, relatively few experienced white collar line prosecutors remain in the Unit. Only someone steeped in the process of investigating and trying complex corporate white collar cases, who possesses the skills to advancing these types of investigations in “real time,” would have the necessary skill set to rectify this persistent problem.
Deep law enforcement leadership experience further serves as an incubator for developing and implementing strategic vision. This vision is especially critical here given the recent infusion of significant resources in the FCPA Unit. With more than 30 attorneys allocated, the Unit is positioned to achieve maximum law enforcement impact and to meet the challenge of its mission — by prosecuting and punishing both the bribe payers (corporations and individuals) and the bribe takers (third party agents and government officials), and by seizing and repatriating the looted funds back to the citizens of the foreign country.
Experienced white collar leaders, with a track record of impacting criminal behavior, understand the value of establishing and publishing actual metrics from which the success of the endeavor can be realistically ascertained. Measuring the success of enforcement initiatives necessarily is a critical part of a viable long term strategy. Claiming victory based simply on the size of the penalties or the number of prosecutions is woefully insufficient. More exacting standards of achievement are required and possible. Granted, evaluating the relative success and impact of a law enforcement initiative is difficult, but it is essential for both allocating the appropriate resources and engendering public confidence and support for the effort.
2. Commitment. Over the past five years, although experiencing exponential growth of personnel, the FCPA Unit has seen unrelenting attrition. Only four of the Unit’s more than 25 current attorneys served in the Unit five years ago. Rapid turnover of personnel creates unique problems that only a committed and experienced litigator/manager can rectify. For these reasons, the new FCPA Chief must exemplify a long term commitment to the DOJ and the mission of the FCPA Unit, thereby proving that they are in it for the long haul. Publicly confirming at least a four year commitment to the Unit would a welcome start that would be more than just symbolic.
In some circles at least, the relatively short tenures of FCPA Unit attorneys has fed the perception that some prosecutors are merely cycling through the Unit to “check the FCPA box” in the hopes of attaining a lucrative career in private practice. The notion that the FCPA Unit feeds the “FCPA Inc.” beast, regardless of its actual merit, is extremely debilitative to the mission of the Fraud Section and the credibility of the Department. A demonstrably committed FCPA Unit Chief can, over time and by example, effectively alter that corrosive perception.
Durational commitment to the FCPA Unit also offers a host of other major advantages as well. With the influx of relatively new prosecutors to the unit, consistent long term training in the methods of expediently investigating overseas economic crime is possible—and essential. Any experienced DOJ manager understands that successfully investigating complex frauds is a product of ability, training and experience. Such training occurs, of course, both in the classroom and working alongside committed, experienced mentors.
When prosecutors endeavor to charge the bribe takers and seek to recover the proceeds and profits of their bribery schemes, skill, tenacity and commitment play a seminal role. The recent release of The Panama Papers offers a tip of the iceberg glimpse into the magnitude of the transnational corruption problem and into the potential avenues for investigative success. Only a skilled, well-trained and committed manager is capable of effectively leading such an effort.
Finally, the long term commitment of an experienced DOJ manager will provide both tangible and intangible benefits to the work of the Unit. A supportive long-term manager is especially important when things go wrong. Prosecutors perform best when they know that when they act in good faith, yet their case does not go as smoothly as expected, their boss will be there for them and will “have their back.” Seasoned DOJ managers also know how to effectively navigate the Main Justice “bureaucracy,” freeing up line prosecutors to focus on investigating and prosecuting and not worrying about being scapegoated. Certainly, s manager’s public support for their “troops,” over an extended period of time, is the backbone of any effective law enforcement enterprise.
3. Humor. Of course the business of investigating trans-national fraud, righteously charging companies, bribe payers and takers, and conscientiously forfeiting and repatriating the proceeds of corruption, while serious business, can be onerous, frustrating and wearing. Add the constant travel and sometimes seemingly unforgiving management oversight and you have a potentially toxic mix of circumstances that can wreak havoc on morale. The ability to disarm the situation, by putting things in perspective with humor, has an incredibly ameliorative effect on morale. While the Unit may not need a Rodney Dangerfield at its helm, appropriate humor and perspective can help to deescalate stressful situations and restore the proper balance in prudent crisis management.
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The choices facing the new leadership of the FCPA Unit are stark and consequential. Should they maintain the stodgy status quo, with limited adjustments like the new Pilot Program, or should they begin to implement a bolder long-term program more likely to deter every level of transnational corruption? The legacy of the prior FCPA Chiefs serves as a guide for achieving profound transformational change.
The next FCPA Chief, possessing the appropriate skills, character and vision, like the luminaries that have previously served in that post, could be empowered to make a world of difference. Justice would seem to demand it.
Paul E. Pelletier is a partner in the Washington, D.C. Office of Mintz Levin Cohn Ferris Glovsky and Popeo PC. His practice focuses on white collar criminal defense and compliance. He previously spent more than 25 years at the U.S. Department of Justice, serving as Chief of the Economic Crimes Section for the U.S. Attorney’s Office in Miami and from 2002 to 2011 as Acting Chief and Principal Deputy Chief of the Criminal Division’s Fraud Section. He can be contacted here. Follow him on Twitter @PePelletier.