Baker & Mckenzie’s Tarun Says FCPA Enforcers a Very Small Coast Guard in a Very Large Ocean
21 Corporate Crime Reporter 29, July 16, 2007

Baker & McKenzie partner Robert Tarun says that the anti-bribery enforcement unit at the Department of Justice is like a very small Coast Guard policing a very large ocean.

Despite this, cases are being brought, and Tarun wishes the Department would set down some markers to give guidance to companies seeking to navigate the now choppy waters of Foreign Corrupt Practices Act (FCPA) enforcement.

Tarun, is co-author (with Dan Webb and Steven Molo) of Corporate International Investigations (Law Journal Press).

Tarun said that in conducting internal investigations of bribery or other wrongdoing, it’s important not to be locked into a narrow scope.

“To the extent you are going to work with the Department of Justice, they want to have confidence that the person conducting the investigation is independent, or trying to be as independent as possible,” Tarun told Corporate Crime Reporter this week. “If you are investigating a payment overseas by executive X in country A, and you find out that executive X was in countries B and C, you have to ask – is it reasonable for us to take a look at his conduct in those other two countries during the same time frame?”

“If you haven’t done it, the government is going to come back and say – you have closed your eyes to the logical steps of an investigation. That doesn’t mean that investigation counsel has to go on a five-year mission investigating every operation or business segment or unit. On the other hand, if you are engaged by an audit committee, and your initial scope is X, but after getting into it, you think that Y and Z should surely be looked at, given the facts uncovered as to X thus far, you ought to do that, or the government is going to question the independence or the thoroughness of your investigation.”

For years, Tarun has worked in Chicago, where U.S. Attorney Patrick Fitzgerald presides.

He is cautiously praiseworthy, but also guardedly critical, of Fitzgerald’s style.

“Fitzgerald is a highly ethical, very responsible prosecutor,” Tarun told Corporate Crime Reporter. “He came to Chicago with little knowledge of the legal community here. But he’s very hardworking and dedicated. I disagree with some of his decisions. But I think he is deeply committed to upholding the principles of the Department of Justice.”

On the other hand?

“There have been times – and this may be changing – but there have been times when he has not been particularly willing to sit down and listen to defense positions pre-indictment,” Tarun said. “And that is an important part of the process. If there are issues that raise questions about the merits of the prosecution, they ought to be discussed in advance of the return of an indictment and not after the return of an indictment. Historically, U.S. Attorneys in most districts have given defense lawyers an opportunity to come in and present their views and evidence of why a case should not be brought. The damage to high profile individuals once an indictment is returned is forever.”

[For complete transcript of Interview with Robert Tarun, see 21 Corporate Crime Reporter 29(11), print edition only.]



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