Biden DOJ’s New Approach to Recidivism

ACR Brief 3 November

Biden DOJ’s New Approach to Recidivism

Deputy Attorney General Lisa Monaco made significant policy announcements in her October 28 speech at the ABA White Collar Institute. Among other things – including a restoration of the Yates Memo regarding individuals and a reversal of the Benczkowski memo regarding monitors, which we will cover in detail in coming issues – she said the DOJ will consider all misconduct, even if not directly related to the conduct at issue, in resolutions. She also discussed the repercussions for breaching agreements with the government, making it clear that the DOJ will “hold accountable any company that breaches the terms of its DPA or NPA. DPAs and NPAs are not a free pass, and there will be serious consequences for violating their terms.”

Just a few days before the speech, Telecom giant Ericsson, a party to a billion-dollar FCPA settlement in late 2019, announced that the DOJ considers it in breach of its DPA due to a failure to provide certain information. Ericsson has also reached a civil settlement with Nokia stemming from the FCPA case – we have analysis of that matter as well from Vinson & Elkins.

It is unclear whether Ericsson is a repeat offender, but FCPA recidivists in the past have received varying deals. Novartis’ 2020 FCPA settlement with the DOJ and SEC came four years after its first settlement with the SEC and it was able to avoid a monitor. Oil and gas company Eni settled a books and records case on behalf of its subsidiary in 2020 with relatively light terms; in 2010, it had settled on behalf of another subsidiary with the SEC. Medical device company Orthofix is a repeat offender with an action by the DOJ and SEC in 2012 and one in 2017, the latter settlement with just the SEC.

On the other hand, medical device company Stryker settled an FCPA action in 2013 and then again in 2018, and the recidivism appeared to be a significant factor in that case. And, after two extensions of Biomet’s 2012 DPA, that medical device company settled again in 2017, receiving no credit for its voluntary disclosure and three years under a compliance monitor.

More recently, Credit Suisse entered a global settlement with the SEC, DOJ and FCA in the U.K. to resolve allegations stemming from a kickback scheme in Mozambique. It had settled a case related to hiring practices in Asia in 2018 for $47 million, but that case does not seem to have played a role in the most recent settlement.

Look for more on Credit Suisse in our next issue, and let us know your thoughts on the new DOJ policies.