Why Eat Your Words When You Can Eat a Peach?

Taken to the woodshed or when should a company have to eat its own words? Remember when President Reagan’s Director of the Office of Management and Budget, David Stockman, was ‘taken to the woodshed’ by White House Chief of Staff James Baker after public comments that Stockman made for an Atlantic Monthly article that questioned the monetary policy which underpinned the entire Reagan Revolution? Stockman was most contrite thereafter.

We had a recent example of this in the context of US federal enforcement actions in the Standard Chartered (StanChart) matter. For those who might not remember, our friends at StanChart agreed to pay approximately $667MM in fines to several US regulators for the bank’s conduct around its breach of US sanctions on Iran. The bank agreed to voluntarily enter into a Deferred Prosecution Agreement (DPA) and as part of that DPA it agreed not to publicly contest the agreement or generally make any public statements contradicting the acceptance of responsibility. There are usually similar clauses in Foreign Corrupt Practices Act (FCPA) DPAs as well.

In an article in the Financial Times (FT), entitled “StanChart trio are called before US regulators”, by Kara Scannell, Patrick Jenkins and Lina Saigol, they reported that Sir John Peace, StanChart chairman said at a March 5 Press Conference that the Bank had engaged in “no wilful act to avoid sanctions; you know, mistakes are made – clerical errors” related to its myriad of conduct in doing business with Iran, in violation of US trade sanctions. This language directly contradicted the terms of the StanChart’s various settlement agreements with US regulators. On March 21, he was required to eat those words when he “said those comments were “both legally and factually incorrect”” and retracted them. “Standard Chartered Bank unequivocally acknowledges and accepts responsibility . . . for past knowing and wilful criminal conduct in violating US economic sanctions laws and regulations”.

According to the article this retraction was the result of a meeting he, Chief Executive Peter Sands and Finance Director Richard Meddings were called to with the Department of Justice (DOJ) and New York district attorney Cy Vance, “Standard Chartered was required to retract the statement or be subject to prosecution,” the DOJ said. The article also reported that “US officials at the meeting emphasised the importance of the terms of a settlement over sanction violations, including the bank’s ongoing co-operation. DoJ officials were concerned because the comments came from the top of the bank and had pushed for a public retraction and email to the entire staff. Sir John told them it was a humiliating day for him personally and for the bank, the person said.” This is the ‘going to the woodshed part’.

But what about these clauses prohibiting such contradictions? The FCPA Professor lets you know where he stands on the issue with his post on StanChart, entitled “The “Muzzle” Clause”, where he poses the question, “Is this an effective system of justice?” when the following exists:

First, the DOJ can use its leverage and its ability to bring criminal charges against a company. Second, the DOJ will can then use an NPA or DPA to insulate its version of the facts and enforcement theories from judicial scrutiny which the risk averse company will more often that not accept. Third, in the resolution agreement, the DOJ can include a “muzzle” clause prohibiting anyone associated with the company from making any statement inconsistent with the DOJ’s version of the facts or its enforcement theories.  Fourth, if the DOJ believes, in its sole discretion, that a public statement has been made contradicting its version of the facts or its enforcement theories, the DOJ can “pounce” and threaten to bring criminal charges.

As to the first point, I think that the DOJ would respond that it brings enforcement actions that are appropriate under the facts and circumstances of the case. But as to the second point, I believe that DPAs and Non-Prosecution Agreements (NPAs) are equally preferred, if not more so by companies. The reason is that they bring closure with certainty, which is what company’s desire in any legal proceeding. If there are company’s which want to go to trial and test the Arthur Anderson result, they should go ahead and do so but I certainly do not want to be the first General Counsel (GC) or Chief Compliance Officer (CCO) who makes the wrong call and have my company go poof because I turned down an offer to settle.

As to point three, I am somewhat more concerned with this issue in the context of the First Amendment. Here the Professor cites to Professor Ellen Podgor who asked “whether the government can include such clauses in resolution agreements without infringing on First Amendment rights.” Clearly if a person or company is convicted of a crime they have the right to contest that finding, vocally or otherwise. However, in the DPA context, a company has admitted to conduct and findings so perhaps there is a difference than a person convicted at trial who wants to scream from the highest mountaintop “I didn’t do it”.

On point four, I have to disagree with the Professor. In another FT article, entitled “StanChart chairman forced to eat his words over Iran”, the reports quoted Simon Maughan, an analyst at Olivetree Securities, who with perhaps less delicacy and also with greater English irony, said “StanChart had tried to play hardball with the US regulators and lost.”

I have worked in a company under a DPA for its FCPA violations. I did not find it hard to not contradict the facts and findings in the DPA. In fact, the company used those facts and findings to make itself into a stronger and more financially viable entity. It seems to me, if one cannot even accept the fact that it was your company which engaged in legal violations and not simply some ‘clerical errors’ which caused your company to pay $667MM in fines, you really have not learned very much. Perhaps that is what the DOJ really wants companies to understand.