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February 21, 2023
Anyone who ever watched a cop drama (or suffered a real-life arrest) is familiar with the “read him his rights” ritual. Writing in FCPA Blog, Richard Cassin asks whether it might be a good idea to give new hires at multinationals a corporate version of the Miranda warning. They wouldn’t necessarily be handcuffed, but leg shackles might be in order, since the only rational response for a bright young person looking for a way to get on in the world would be to run. In January, the DOJ announced that it expects “extraordinary cooperation” from companies with Foreign Corrupt Practices Act problems, not just “full cooperation.” Cassin contends that no one outside the legal profession or a compliance department fully comprehends what that means. In a nutshell, it means that there is a big incentive to cooperate extraordinarily (more leniency for fines, no required guilty plea), but to qualify the feds may well be expecting the company to finger those individuals involved in FCPA violations. “Have we reached the point when employees, agents, and even third-parties should receive some form of corporate Miranda warning during onboarding and periodically after that?” Cassin asks. At present, when company lawyers interview employees in conjunction with FCPA investigations, they are cautioned that counsel represents the company, not the employee; that communications between employee and counsel are privileged, but the privilege may be waived by the company; that any cooperation the company extends to prosecutors puts the employee in jeopardy. Cassin suggests adding two further stipulations: If the corporation becomes aware of potential FCPA problems, it intends to cooperate with prosecutors; that such cooperation increases the likelihood that individuals involved with or responsible for FCPA offenses will be prosecuted. According to Cassin, most employees have no idea how being part of a corporation can increase their risk of FCPA prosecution. “That’s knowledge they’re entitled to have,” he says.
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