Thank you, Carey, for that kind introduction. It’s a great privilege to be here with you, and so many members of the New York bar this evening. I’m delighted to see old friends in the audience, and I appreciate your warm welcome.
Even though I have lived and worked in Washington, D.C., for over 20 years, there is no place I feel more at home than in New York City. I was born in Manhattan and grew up in Queens. I went to Newtown High School in Elmhurst, and then, as Carey said, to Columbia College and Columbia Law School, before starting my legal career at the Manhattan District Attorney’s Office.
Now, whether you are a new member of the New York bar, or a more grizzled New York lawyer, you know that this city can be unforgiving in certain ways. But, I like to think that living and practicing law in New York prepares you for anything. Even for living in Washington.
It is a true honor to be with you at the New York City Bar Association tonight. I feel privileged to be here and look forward to having an active discussion with you afterward.
I have been Assistant Attorney General of the Criminal Division for nearly three-and-a-half years, which I am told makes me the longest serving head of the Division in nearly 50 years. The Criminal Division is based in Washington, D.C., and has approximately 600 lawyers across 15 sections. Division lawyers prosecute an array of federal crimes – from public corruption (in our Public Integrity Section), to cybercrime (in our Computer Crime and Intellectual Property Section), to violent and organized crime (in our Organized Crime and Gang Section), to financial fraud (in our Fraud Section).
Since 2009, my team and I have changed the Division in significant ways – bringing in new, energetic leadership in virtually all of our sections, and prosecuting the highest-impact cases in the country.
In particular, and relevant to the subject of my remarks tonight, we have dramatically ramped up our white collar criminal enforcement efforts – an aspect of our work that I care deeply about, and that is now more important than ever. In 2010, I hired Denis McInerney, a lawyer well known to many of you, and Carey’s former partner at Davis Polk, to be the Chief of the Criminal Division’s Fraud Section. Denis has tremendous energy and skill, and together we have hired many talented prosecutors into the Section – from U.S. Attorneys’ Offices, top law firms, and elsewhere. The Criminal Division is lucky to have someone of Denis’s sophistication and experience leading the Fraud Section.
Tonight, I want to focus on one aspect of our white collar criminal enforcement in particular: the use of deferred prosecution agreements, or DPAs. Over the past three-and-a-half years, the Department of Justice has entered into dozens of DPAs, and non-prosecution agreements, or NPAs. I’ve heard people criticize them and I’ve heard people praise them. What I’m here to tell you, is that, along with the other tools we have, DPAs have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe.
Though the U.S. Supreme Court blessed the concept of corporate criminal liability over 100 years ago – in New York Central Railroad Company v. United States – until roughly 20 years ago, we had only the blunt instrument of criminal indictment with which to attack corporate crime. Prosecutors faced a stark choice when they encountered a corporation that had engaged in misconduct – either indict, or walk away. In the 1990s, however, the government began doing something new: agreeing to defer prosecution against the corporation in exchange for an admission of wrongdoing, cooperation with the government’s investigation, including against individual employees, payment of monetary penalties, and concrete steps to improve the company’s behavior. And, over the last decade, DPAs have become a mainstay of white collar criminal law enforcement.
The result has been, unequivocally, far greater accountability for corporate wrongdoing – and a sea change in corporate compliance efforts. Companies now know that avoiding the disaster scenario of an indictment does not mean an escape from accountability. They know that they will be answerable even for conduct that in years past would have resulted in a declination. Companies also realize that if they want to avoid pleading guilty, or to convince us to forego bringing a case altogether, they must prove to us that they are serious about compliance. Our prosecutors are sophisticated. They know the difference between a real compliance program and a make-believe one. They know the difference between actual cooperation with a government investigation and make-believe cooperation. And they know the difference between a rogue employee and a rotten corporation.
In April of this year, for example, a former managing director of Morgan Stanley, Garth Peterson, pleaded guilty to conspiring to evade the bank’s internal Foreign Corrupt Practices Act controls. He was sentenced to prison last month. Because Morgan Stanley voluntarily disclosed Peterson’s misconduct, fully cooperated with our investigation, and showed us that it maintained a rigorous compliance program, including extensive training of bank employees on the FCPA and other anti-corruption measures, we declined to bring any enforcement action against the institution in connection with Peterson’s conduct. That is smart, and responsible, enforcement.
At the same time, when we discover more systematic wrongdoing within an institution, the corporation itself can face severe consequences. In the Siemens case, for example, in which we uncovered a company rife with corruption from top to bottom, we required Siemens AG and three of its subsidiaries to plead guilty to FCPA-related offenses. Siemens paid $450 million in fines in the United States, in addition to hundreds of millions more in civil penalties and to German enforcement authorities – for a total of $1.6 billion. The company also had to appoint an independent compliance monitor for a four-year period, and virtually the entire leadership of the company was replaced. And late last year, following extensive cooperation by the corporation, we announced indictments against eight former senior Siemens executives and agents, including a former member of Siemens AG’s central executive committee, the former CEO of Siemens Argentina, and that company’s former CFO. You don’t have to look further than the general counsel of Siemens AG to hear someone say that the problem at Siemens was systemic – “widespread corruption steered out of Germany,” as he put it in a recent interview – and that the culture has changed dramatically in the years since the company owned up to its conduct.
One of the reasons why deferred prosecution agreements are such a powerful tool is that, in many ways, a DPA has the same punitive, deterrent, and rehabilitative effect as a guilty plea: when a company enters into a DPA with the government, or an NPA for that matter, it almost always must acknowledge wrongdoing, agree to cooperate with the government’s investigation, pay a fine, agree to improve its compliance program, and agree to face prosecution if it fails to satisfy the terms of the agreement. All of these components of DPAs are critical for accountability.
Perhaps most important, whether or not a corporation pleads guilty, as Siemens AG did, or enters into a DPA with the government, the company must virtually always publicly acknowledge its wrongdoing. And it must do so in detail. This often has significant consequences for the corporation, and it prevents companies from explaining away their resolutions by continuing to deny that they did anything wrong.
In June, as has been widely reported, the Criminal Division’s Fraud Section resolved allegations of criminal wrongdoing with Barclays Bank over the bank’s role in its manipulation of the London Interbank Offered Rate, or LIBOR. The statement of facts appended to the NPA sets forth the factual basis for the agreement in substantial detail, quoting from specific emails in which Barclays traders asked Barclays rate submitters to manipulate their LIBOR submissions. As one trader wrote, “My [counterparts in New York] were screaming at me about an unchanged 3m libor. As always, any help [would] be greatly appreciated. What do you think you’ll go for 3m?” To which the rate submitter replied, “I am going 90 altho[ugh] 91 is what I should be posting.”
As I said at the time, Barclays has paid a significant price for this egregious conduct. In fact, in the wake of our announcement, the top management of the bank was replaced. As we also recognized at the time, Barclays’s cooperation with the Fraud Section’s investigation was extraordinary. The bank voluntarily disclosed its misconduct, informed us of facts we did not know, and continues to cooperate in our ongoing criminal investigation. We agreed not to prosecute Barclays in light of this extensive cooperation. Nevertheless, the consequences for the bank have been substantial.
Another absolutely critical point is that regardless of whether we indict a company or agree to defer prosecution, individual wrongdoers can never secure immunity through the corporate resolution. There are of course times when, despite a company’s admission of significant misconduct, we lack the evidence to prove that any particular individual committed a crime. But, when we do have the evidence we need, we never hesitate to prosecute individuals – and they go to prison. In late 2010, for example, Alcatel-Lucent S.A. and three of its subsidiaries agreed to pay $92 million to resolve an FCPA investigation by the Fraud Section. We agreed to defer prosecution against Alcatel-Lucent S.A., and each of the three subsidiaries pleaded guilty. Did individuals get a pass? No. Two former executives were indicted – one of them pleaded guilty and was sentenced to prison, and the other remains a fugitive.
I have said before that the strongest deterrent against corporate crime is the prospect of prison time for individual employees – and we do not hesitate to seek long sentences when circumstances warrant. Lee Bentley Farkas, the former chairman of Taylor Bean & Whitaker, which was one of the largest private mortgage lending companies in the country, is serving a 30-year prison sentence for having masterminded a nearly $3 billion bank and securities fraud, and several of his co-conspirators are also serving substantial prison sentences. R. Allen Stanford, who misappropriated $7 billion from Stanford International Bank to finance his personal businesses, is serving a 110-year sentence. Roger Day, who defrauded the Department of Defense on over 300 contracts, was sentenced to 105 years in prison. And Lawrence Duran, the former owner of a mental health care company, is serving a 50-year sentence for having orchestrated a $205 million Medicare fraud scheme.
To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly. We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client. In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects. Sometimes – though, let me stress, not always – these presentations are compelling. In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders, just as we must take into account the nature of the crimes committed and the pervasiveness of the misconduct. I personally feel that it’s my duty to consider whether individual employees with no responsibility for, or knowledge of, misconduct committed by others in the same company are going to lose their livelihood if we indict the corporation. In large multi-national companies, the jobs of tens of thousands of employees can be at stake. And, in some cases, the health of an industry or the markets are a real factor. Those are the kinds of considerations in white collar crime cases that literally keep me up at night, and which must play a role in responsible enforcement.
When the only tool we had to use in cases of corporate misconduct was a criminal indictment, prosecutors sometimes had to use a sledgehammer to crack a nut. More often, they just walked away. In the world we live in now, though, prosecutors have much greater ability to hold companies accountable for misconduct than we used to – and the result has been a transformation in the culture of corporate compliance. In appropriate circumstances, large corporations, such as Siemens AG, must plead guilty for their crimes. In other cases, because the company has gone to extraordinary lengths to turn itself around, for example, or provided the government with extensive cooperation, a deferred prosecution agreement or non-prosecution agreement may be the best resolution. No matter what, individual executives and employees must answer for their conduct. And, perhaps most important of all, companies know that they are now much more likely to face punishment than they were when our choice was limited to indicting or walking away. Overall, this state of affairs is better for companies, better for the government, and better for the American people.
Let me thank you again for inviting me to speak with you this evening. I am honored to be here. Thank you.