CORRUPTION

Interview with Jessica Tillipman
International Affairs Forum
24
the case. If a company adheres to these
requirements for the term of the agreement,
then the company may avoid prosecution. The
agreements have provided companies with some
level of comfort and certainty when negotiating
with the government, while simultaneously
enabling the government to settle a greater
number of enforcement actions.
A number of countries that have had difficulty
prosecuting foreign bribery cases do not have
similar settlement mechanisms. Some countries
are now investigating whether they can integrate
DPAs and NPAs into their criminal justice
systems. For example, the UK is already using
DPAs and other countries, such as Australia, are
discussing it as well.
Over the past 15 years, the United States has
worked with other countries to improve global
anti-corruption enforcement. When the FCPA
was passed in the late ‘70s, the US was alone
in the world in its attempt to prosecute foreign
bribery. In fact, until recently, many countries
considered bribes to be tax deductible. After
passing the FCPA, the US government spent
the next several decades lobbying the world
to pass similar laws. Ultimately, this resulted
in the OECD Anti-Bribery Convention which
obligated countries to enact and implement
FCPA-like laws. Subsequently, many have done
so. Eventually, similar treaties were enacted,
such as the United Nations Convention Against
Corruption (UNCAC).
In recent years, we have seen increased efforts
in other countries to ramp up the enforcement
of their foreign anti-bribery laws. For example,
enforcement in Canada, the UK, Germany, and
Switzerland has been more robust. The “active”
countries are pushing other countries to ramp up
their enforcement as well.
Over the past eight years, we’ve seen a seismic
shift in views regarding compliance programs.
The DOJ and SEC have released guidelines
which outline the “hallmarks” of an effective
compliance program. This guidance mirrors
what we are seeing around the world. We now
say that there is an emerging “global” anticorruption
compliance standard for companies
promoted by organizations such as Transparency
International, the World Bank, the United
Nations, and the OECD. The UK Bribery Act
developed similar guidelines regarding what
is expected of companies that operate multinationally.
As part of the Department of Justice Fraud
Sections’ FCPA Enforcement Plan and
Guidance, a Pilot Program has been launched
to promote and facilitate voluntary disclose
of FCPA violations. Since the launch, DOJ
has released two declination letters for
Akamai Technologies and Nortek, Inc. and the
SEC announced disgorgement settlements.
What are your thoughts on the program and
prospects for its success?
I view the pilot program as simply memorializing
an existing DOJ policy. As discussed, DOJ
has been encouraging companies for over
ten years to disclose violations voluntarily.
However, companies could not see the benefit
in disclosure as disclosure would often result in
huge fines and penalties. Without clarity from the
government, companies failed to see the benefit
in coming forward when there was a chance
the government might not find out about the
misconduct.
So, in recent years, the government has tried
to be very clear about what that benefit is.
Often, in a settlement with a company, the
government will outline the steps that it took to
determine fines and penalties. If the sentencing
guidelines calculated the penalty as X, a
company, by voluntarily disclosing the illegal