Top Ten International Anti-Corruption Developments For September 2015

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments in the past month with links to primary resources. September saw a big (or not so big, depending on who you ask) policy announcement from DOJ, a couple of SEC-only FCPA corporate enforcement actions as the fiscal year ended for the agency, a surprise guilty plea by a former Siemens executive nearly four years after indictment, and numerous other developments including the media reporting that the DOJ selected a compliance expert to evaluate compliance programs for the Fraud Section. It is all here in our September 2015 Top Ten list:

1. DOJ Issues "Yates Memo" on Individual Accountability for Corporate Wrongdoing.

   As we reported earlier, during a September 10, 2015 conference at New York University, Deputy Attorney General (DAG) Sally Quillian Yates announced a new Department of Justice policy memo regarding "Individual Accountability for Corporate Wrongdoing." The so-called Yates Memo sets forth "six key steps" designed to ensure that federal prosecutors most effectively hold individuals accountable for illegal corporate conduct: (1) To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct; (2) Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation; (3) Criminal and civil attorneys handling corporate investigations should be in routine communication with one another; (4) Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals; (5) Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires, and declinations as to individuals in such cases must be memorialized; and (6) Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond the individual's ability to pay. According to the Memo, many of these steps are "best practices that are already employed by many federal prosecutors." In announcing the policy, however, Yates described the first step as an "all or nothing" approach and "a substantial shift from our prior practice." Whether this is actually a substantial shift from prior practice has been the subject of considerable debate within the white collar defense bar. Apparently weighing in on the side of "no" is Criminal Division AAG Leslie Caldwell who, in a September 22, 2015 speech discussing the Yates Memo, stated that experienced defense attorneys "may not ultimately see the new policy guidance as anything radical." Time will, of course, tell just how "substantial" or "radical" the new policy will turn out to be, and we expect that DOJ and the defense bar will quickly reach equilibrium on the new ground rules.

2. Siemens Argentina CFO Pleads Guilty to 2011 Charges.

   On September 30, 2015, Andres Truppel, the former chief financial officer for Siemens Argentina, pleaded guilty in Manhattan federal court to conspiring to pay $100 million in bribes to senior Argentine government officials to secure, implement, and enforce a $1 billion contract between Siemens and the Argentine government to produce national identity cards. Truppel, of Buenos Aires, Argentina, pleaded guilty to a single conspiracy count, which capped his prison exposure to a maximum sentence of five years and three years of supervised release. This is the first...