Robert Appleton has spent much of his legal career prosecuting white collar and corporate crime — first as a federal prosecutor, then Chief Investigative Counsel for the UN Oil for Food Program, then for the Inspector General at the Global Fund to Fight AIDS, TB and Malaria and then at the United Nations.

Appleton is now a partner at Day, Pitney in New York.

But all of that prosecutorial experience — and international experience — gives him an advantage in defending corporate and white collar crime.

“I put a premium on my international experience, getting on the ground, interviewing corporate executives, foreign government officials, intermediaries,” Appleton told Corporate Crime Reporter in an interview last week. “It was such an eye-opening experience for me. It gave me a much greater perspective.”

“You can get tunnel vision here in the U.S. You are far away from all this. It was very enlightening for me. I can see how people think, what the concerns are, what the priorities are.”

“Payment of sums of money for an award for a contract is customary in many places. It’s somewhat of a cultural thing. In the U.S. and some parts of Europe, it’s taboo. But in many places, it’s not seen that way. You have a real cultural clash. I was able to see that dynamic first hand and I can understand the individuals and the culture and how people think and react. And it helps me immensely in being able to advise people and companies and help them in these kinds of cases.”

Some people say that corruption is as much a First World problem as a Third World problem.

Appleton has spent much time in the Third World tracking down corporate crime. And he has a different perspective.

“Corruption continues to be a significant and major problem around the world, “ Appleton said. “There are some who say it’s really a First World problem and developing world issues are overblown. I don’t think that is the case. There are still significant and pervasive corrupt practices ongoing in many places. Even to this day you cannot get a government contract without a payment or gratuity or some form of consideration to individual government officials or public officials.”

“It’s next to impossible in many locations to get a contract without payment of a bribe. In many locations to this day, it goes on in significant fashion. Less than one percent of cases ever get reported. It is still overwhelmingly occurring. There has certainly been an uptick in cases that are being made. But it is a slight percentage of the overall amount of corruption that occurs. Many countries undertake investigations. But then when it gets into senior government officials, there is less motivation. You see cases disappear once it starts reaching deep into government agencies.”

That’s not to say that U.S. companies don’t have their problems with the Foreign Corrupt Practices Act (FCPA).

“The FCPA has had an impact, but it’s not a huge impact,” Appleton said. “And without a doubt, companies are still rolling the dice. In many cases, you either roll the dice or your give up business in these locations.”

Those locations are countries where American corporations do a lot of business, including China and Mexico.

“Correct,” Appleton said. “And other places where they are trying to gain business. When I was with the IG at the Global Fund, one of the things that struck me in Cambodia was — we took 74 computers out of government offices — and the evidence was clear that you couldn’t get a contract without payment of a bribe.”

And yet, you are not seeing a huge increase in the number of FCPA cases. Why would that be?

“Prosecutors have limited staff, a limited budget, a limited ability to investigate,” Appleton said. “They are dependent on disclosure and whistleblowers for most of the cases. That shows you don’t have the tidal wave of companies and individuals willing to report. The cases actually went down last year. The fines went up but the cases went down a bit.”

That’s what other defense attorneys are telling us. Companies are making a calculation — not worth the risks of disclosure and cooperation.

“Companies realize that you can skip the disclosure piece but still tick off all the other boxes,” Appleton said. “Have a sound program, cooperate if investigated, take remedial action as soon as you are investigated. Take as many steps as you can take to mitigate damages even without disclosure. And if you look at the cases, some of the companies were able to get pretty good reductions without disclosure. And if you look at the percentages — disclosure is worth about 20 percent — give or take.”

“Is it worth it to disclose for 20 percent? You can get a pretty good reduction by taking remedial action, instituting procedures and cooperating. Cooperation is going to be worth as much as disclosure.”

Remediate and then if you are found out, cooperate?

“Many are going down that route,” Appleton said. “Maybe it’s human nature. Companies are still reluctant to institute sound compliance programs if they haven’t yet been hit with an offense. But it’s pretty clear that if you have a good program, you are going to get credit for it. Have a good program, remediate and then cooperate. You may make out almost as well.”

[For the complete q/a format Interview with Robert Appleton, see 29 Corporate Crime Reporter 10(12), March 9, 2015, print edition only.]