FCPA Policy Benefits Open to Repeat Bribery Offenders: Kathleen Hamann Quoted in Law360

Excerpted from an article by Jody Godoy in the July 9, 2019 issue of Law360

French oil conglomerate TechnipFMC recently agreed to settlement terms with the U.S. Department of Justice for once again violating the Foreign Corrupt Practices Act. But the terms of that settlement show that being a repeat offender, or “recidivist,” doesn’t hinder the company from receiving cooperation and remediation credit.

In TechnipFMC's settlement, the DOJ explained that because Technip is a recidivist, the 25% discount for full cooperation and remediation was "deducted from a point near the midpoint" of the applicable fine range, rather than from the low end, as would usually be the case for a non-recidivist.

It appears, however, that TechnipFMC received a “proportionally lighter penalty” than medical device company Zimmer Biomet, which ran into trouble for violating Biomet’s breach of a deferred prosecution agreement that it entered in an FCPA case before it merged with Zimmer.

When making deals for FCPA violations, prosecutors recommend penalties to “not only deter repeat offenses, but also encourage cooperation and remediation.” Offering incentives for cooperation is mutually beneficial. Without those incentives, companies may not be as forthright, the case could take years to resolve, and they would still face significant penalties.

Prosecutors have also taken the “unusual step” of charging a Brazilian citizen who had served prison time there for his role in a scheme to “bribe Brazilian officials for Keppel Offshore.”

Pierce Atwood litigation partner Kathleen Hamann, a former FCPA prosecutor who also spent ten years at the State Department, noted that while some countries consider it double jeopardy to charge a person who was already prosecuted by a foreign authority, the U.S. isn’t one of them. Kate referred to the recent U.S. Supreme Court decision in Gamble v. U.S. that “blessed” the U.S. approach, which Kate said is “an ‘America first’ approach to transnational enforcement.”

According to DOJ policy, in order to bring federal charges against someone who has already been charged by a state or another country, “the case has to implicate a federal interest and "the prior prosecution must have left that interest demonstrably unvindicated."

Please see the July 9, 2019 issue of Law360 for the complete article.