The Justice Department continues to ramp up its rhetoric on the prosecution of individuals in corporate crime cases.
Assistant Attorney General Sung-Hee Suh said today that “the prosecution of individuals — including corporate executives — for criminal wrongdoing continues to be a high priority for the department.”
“That is not to say that we will be looking to charge individuals to the exclusion of corporations,” she said. “However, corporations do not act criminally, but for the actions of individuals. And, the Criminal Division intends to prosecute those individuals, whether they are sitting on a sales desk or in a corporate suite.”
Suh said that the Criminal Division is seeking to “reshape the conversation about corporate cooperation to some extent.”
“Corporations too often overlook a key consideration that the department has long expressed in our Principles of Federal Prosecution, which guide our prosecutorial decisions: That is a corporation’s willingness to cooperate in the investigation of its culpable executives.”
Of course, corporations — like individuals — are not required to cooperate. A corporation may make a business or strategic decision not to cooperate. However, if a corporation does elect to cooperate with the department, it should be mindful of the fact that the department does not view voluntary disclosure as true cooperation, if the company avoids identifying the individuals who are criminally responsible for the corporate misconduct.”
“Even the identification of culpable individuals is not true cooperation, if the company intentionally fails to locate and provide facts and evidence at their disposal that implicate those individuals. The Criminal Division will be looking long and hard at corporations who purport to cooperate, but fail to provide timely and full information about the criminal misconduct of their executives.”
Suh gave a number of examples.
The department unsealed charges against the former co-CEOs and general counsel of PetroTiger Ltd., a BVI oil and gas company with offices in New Jersey, for allegedly paying bribes to an official in Colombia in exchange for assistance in securing approval for an oil services contract worth $39 million.
The general counsel and one of the CEOs already pleaded guilty to bribery and fraud charges, and the other former CEO is headed for trial.
This case was brought to the attention of the department through voluntary disclosure by PetroTiger, which cooperated with the department’s investigation.
“Notably, no charges of any kind were filed against PetroTiger,” Suh said.
“An example on the flip side is the Alstom case, an FCPA investigation stemming from a widespread scheme involving tens of millions of dollars in bribes spanning the globe, including Indonesia, Saudi Arabia, Egypt, and the Bahamas,” she said.
“When the Criminal Division learned of the misconduct and launched an investigation, Alstom opted not to cooperate at the outset. What ensued was an extensive multi-tool investigation involving recordings, interviews, subpoenas, MLAT requests, the use of cooperating witnesses, and more.”
“As of today, four individual Alstom executives have been charged; three of them have pleaded guilty; Alstom’s consortium partner, Marubeni, was charged and pleaded guilty; and Alstom pleaded guilty and agreed to pay a record $772 million fine. And that only accounts for the charges in the United States.”