Over the past 15 months, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have made clear, through three Foreign Corrupt Practices Act (FCPA) enforcement actions and speeches, their priorities in investigations, remediations, and best practices compliance programs. Every compliance professional should study each of these enforcement actions closely for the lessons learned and direct communications from the DOJ. They should guide not simply your actions should you find yourself in an investigation but also how you should think about priorities.

The three FCPA enforcement actions are ABB from December 2022, Albemarle from November 2023, and SAP from January 2024. Taken together, they point out a clear path for the company that finds itself in an investigation: using extensive remediation to avoid a monitor. They also provide insight for the compliance professional into what the DOJ expects in an ongoing best practices compliance program.

Over a series of blog posts, I will lay out what I believe are the Top Ten lessons from these enforcement actions for compliance professionals who find themselves in an enforcement action. Today we continue with Number 6, Clawbacks and Holdbacks. These strategies are relatively new to the DOJ’s arsenal, and they want companies to employ them in enforcement actions. While the DOJ and SEC have long made clear that they view monetary structure for incentive compensation, as far back as the FCPA Resource Guide, 1st edition (2012), they did not focus as intensely on the disincentive side of the equation. Prior to the Monaco Memo, clawbacks had not been generally seen as a necessary part of a compliance program.

This began to change in the Monaco Memo. It is now unequivocally required by the DOJ and listed as a crucial area of DOJ inquiry in the 2023 Evaluation of Corporate Compliance Programs. Moreover, having such a penalty in place is also seen as part of an excellent corporate culture, which not only penalizes those who engage in unethical behavior in violation of a company’s policies and procedures but will also “promote compliant behavior and emphasize the corporation’s commitment to its compliance programs and its culture.”

The DOJ was told to look into whether companies have “clawback” clauses in their pay agreements and whether “as soon as the company found out about the misconduct, the company has, as much as possible, taken affirmative steps to carry out such agreements and clawback compensation previously paid to current or former executives whose actions or omissions led to or contributed to the criminal conduct at issue.”

The Monaco Memo directed “to develop further guidance by the end of the year on how to reward corporations that develop and apply compensation clawback policies, including how to shift the burden of corporate financial penalties away from shareholders—who in many cases do not have a role in misconduct—onto those more directly responsible.” This clause is an effort by the DOJ to keep companies from shielding recalcitrant executives from the consequences of their own illegal and unethical conduct.

However, the Monaco Memo clarified that it is not simply having a written policy and procedure. If warranted, there must be corporate action under the clawback policy and procedure. In the Albemarle and SAP enforcement actions, the DOJ evaluated the companies’ actions, “Following the corporation’s discovery of misconduct, a corporation has, to the extent possible, taken affirmative steps to execute on such agreements and clawback compensation previously paid to current or former executives whose actions or omissions resulted in or contributed to the criminal conduct at issue.”

Albemarle

Albemarle went in a different direction—not clawbacks, but holdbacks. While the DOJ has made much noise about clawbacks from recalcitrant executives, Albemarle engaged in holdbacks, where they did not pay bonuses to certain employees involved in the conduct or those who had oversight. The NPA stated, “The company withheld bonuses totaling $763,453 during the course of its internal investigation from employees who engaged in suspected wrongdoing.” The illegal conduct involved those who “(a) had supervisory authority over the employee(s) or business area engaged in the misconduct; and (b) knew of, or were willfully blind to, the misconduct.” The significance of this effort was vital as it qualified Albemarle for an additional fine reduction of a dollar-for-dollar credit of the amount of the withheld bonuses under the Criminal Division’s March 2023 Compensation Incentives and Clawbacks Pilot Program.

SAP

SAP had extensive holdbacks as well. The DPA noted SAP withheld bonuses totaling $109,141 during the course of its internal investigation from employees who engaged in suspected wrongdoing in connection with the conduct under investigation, or who both (a) had supervisory authority over the employee(s) or business area engaged in the misconduct and (b) knew of, or were willfully blind to, the misconduct, and further engaged in substantial litigation to defend its withholding from those employees, which qualified SAP for an additional fine reduction in the amount of the withheld bonuses under the DOJ’s Compensation Incentives and Clawbacks Pilot Program.

The DOJ has given significant credit to both Albemarle and SAP for their holdbacks, and we would expect them to continue to do so. If your organization has not instituted a Clawback/Holdback Policy, now is the time to do so rather than wait until you are in the middle of an investigation or enforcement action. Also, remember that the DOJ gives a dollar-for-dollar credit on any settlement where the company engaged in either clawbacks or holdbacks.

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