What on earth is FEPA (the Foreign Extortion Prevention Act)? On this episode of Culture & Compliance Chronicles, Amanda Raad and Nitish Upadhyaya from Ropes & Gray's Insights Lab, and Richard Bistrong of Front-Line Anti-Bribery, ask guest Ryan Rohlfsen, a former federal prosecutor at the U.S. Department of Justice (DOJ) and now partner and co-chair of Ropes & Gray's anti-corruption and international risk practice, to share his views on the DOJ's latest tool. They discuss the implications of FEPA on enforcement, corporate compliance, and the cultural context of international jurisdictions. The conversation also touches on the potential impact on U.S. business interests, the role of whistleblowers, and the practical challenges of extradition. With insights from Ryan's experience with the DOJ, this episode offers a comprehensive look at how FEPA could reshape the landscape of anti-corruption enforcement and compliance.
Transcript:
[00:00] Introductions and 'icebreaker' questions to Ryan.
Amanda Raad: Hello, everyone. We are back with the Culture & Compliance Chronicles brought to you by Ropes & Gray's Insights Lab. I'm Amanda Raad, co-founder of R&G Insights Lab and co-chair of Ropes & Gray's anti-corruption and international risk practice. I am joined today by my colleague and R&G Insights Lab director of behavioral insights, Nitish Upadhyaya.
Nitish Upadhyaya: Hello. We're joined today by Ryan Rohlfsen, a partner at Ropes & Gray and along with you, Amanda, a co-chair of the anti-corruption and international risk practice. We also have with us, as ever, Richard Bistrong, chief executive officer of Front-Line Anti-Bribery. It's really nice to be back with you, Richard. I know you picked this topic in particular after something you'd heard at a conference.
Richard Bistrong: Thank you, Nitish and Amanda. It's great to be back podcasting and to chat with Ryan today. It was funny, I have been following Ryan's anti-corruption work for some time, and I was going to say, "Great to meet you," but Ryan reminded me we have met about five times.
Ryan Rohlfsen: I'm not that memorable apparently...
Richard Bistrong: No, it's more complex than that, because four of the five times were at the Department of Justice when I was cooperating. Usually when I forget someone, I can say it's age, it's jet lag, but in this time, I would say that was very selective memory. A pleasure to have you join us. I heard about the Foreign Extortion Prevention Act (FEPA)—Ryan, I'm going to want to hear if you call that acronym FEE-pah or FEH-pah—and it was at the International Anti-Corruption Conference in Lithuania. There was an international corruption unit with one of the ICU's supervisors from the FBI that was on that panel. Ryan, I'll have to say, I left with more questions about FEPA than I started with after that panel, so I'm really excited to hear your perspective on this.
Ryan Rohlfsen: I always say "FEH-pah" extortion, I guess, on it. I got in a debate about this at a cocktail party at the White-Collar ABA Conference—I don't think there is a general consensus.
Nitish Upadhyaya: Before we turn over to FEPA, let's do some rapid-fire questions to help the audience get to know you, Ryan. Give us three things we should know about you.
Ryan Rohlfsen: A) I'm a partner at Ropes & Gray. B) I'm a former federal prosecutor in the FCPA Unit. And C) as of now, assuming I don't get injured, I'm an avid runner, so I try to stay in shape that way.
Amanda Raad: A marathoner, not just a runner—you're a marathoner.
Ryan Rohlfsen: Amanda helped get me over the finish line my first time. She coached me through the first one, so I appreciated that.
Amanda Raad: I love that. That makes me so happy.
Nitish Upadhyaya: Now we know some things about you. What are you curious about? What's got you intrigued at the moment?
Ryan Rohlfsen: Right now, from the U.S. perspective, is the election. Anywhere in the U.S., but particularly from a D.C. perspective, obviously, it's the topic of the day. Of course, what is that going to mean for law enforcement, because that's what we do for a living day in and day out? In the U.S., things that happen from the political perspective and enforcement perspective reverberate to companies and people around the world. There's two very different directions it could go, or we may still see just smooth sailing ahead regardless of who's in the office—time is going to tell despite all the political rhetoric on it. There's some interesting new tools and initiatives certainly in the last few years out of the Biden administration. DOJ has been particularly aggressive around white collar and corporate enforcement on it, so there's been a lot of new initiatives here, including FEPA.
Nitish Upadhyaya: Amazing. Lots to talk about on that front in a second, but before we get there, one final question. All of our guests on this podcast are pretty amazing people, but they're also human beings. So, what's the last thing that surprised you?
Ryan Rohlfsen: I travel a lot for work—the airlines love me. So, the last thing that surprised me was waking up in Stockholm trying to fly back home to the U.S. to only be met with a blue screen of death at the computers in the hotel and at the airport. I was not expecting to wake up and to be stuck in an airport odyssey in multiple countries just trying to get home.
Nitish Upadhyaya: I think a big surprise for lots of people around the world.
Ryan Rohlfsen: Travel is challenging.
Nitish Upadhyaya: Yes, absolutely. We're reminded that we're all connected in some ways. There are lots of single points of failure that we might think we're past, especially given the pandemic and various other things, but we all have these things that bind us.
[04:50] What is FEPA? How does it work and how does it get enforced?
Going from the travel world and being uncomfortable in the travel space to something I suspect you are incredibly comfortable with, given your background as a prosecutor, give us your thoughts on, "What is FEPA?" for an audience who might be uninformed or trying to get through the regulatory morass. What is it? How does it work? And then, let's dive into the real questions around compliance, legal, and ethics and what it means for listeners.
Ryan Rohlfsen: FEPA closes a gap in the law—and by "the law," I mean the U.S. Foreign Corrupt Practices Act (FCPA) that has existed since the Act's passage in 1977. At the time the FCPA was passed, there was an intentional decision by Congress to carve out the demand side of the bribery equation—foreign government officials, in particular—from being subject to prosecution under the FCPA. The reasoning for that was largely based upon diplomatic considerations—they did not want to have prosecutors in the U.S. and assistant U.S. attorneys (AUSAs) in any district potentially going after foreign officials to avoid, I think, concerns on diplomatic issues that might arise from that. Over the last several decades as enforcement has evolved in this space, that has not stopped the DOJ from going after and prosecuting foreign officials when they had other hooks to do so.
The most prominent ones that they have used over the last 20 years have been money laundering and wire fraud—money laundering being far and away probably the most typically used. U.S. money laundering statutes will allow you to charge anyone who basically uses the U.S. financial system to move money that's used for a variety of purposes, specified in local activities under the law's wording, but which include corrupt acts and bribery. If you're an official in Argentina, for example, and you have a bank account in Miami, or you are trying to transfer Argentine pesos to dollars and you're bouncing it off a correspondent bank in Miami or New York or the like, you are now subjecting yourself potentially to liability and/or money laundering. At its core, the same set of facts that are being investigated in an FCPA case would include those sorts of issues around moving money so you can pay bribes and benefits to the officials. But not every case has a clear money laundering hook—not every case involves dollar-denominated transactions. You could have benefits paid to government officials that are a local currency that are in the form of some sort of travel benefit, gifts, entertainment, or things that wouldn't be subject to those laws. So, this closes the gap on that and, in fact, expands it fairly dramatically in terms of now you basically reversed this long-standing situation where the foreign officials would not be subject to bribery charges.
Richard Bistrong: Speaking more practically, it just seems like it's a conundrum. What tools are there to enforce FEPA? Just as an example, at the IACC, they were talking about using laws like asset confiscation, forfeiture, and sanctions as a way to "squeeze," for lack of a better term. Ultimately, you have to get someone who might be residing outside the United States to the United States. We know extradition isn't easy under any circumstances, so how does this practically get enforced?
Ryan Rohlfsen: If you're at DOJ and you're investigating a corruption allegation involving U.S. persons, companies, or issuers on it, every FCPA case that is brought has, by definition, a foreign official involved somewhere in the fact pattern. Up and until FEPA, though, the DOJ could not prosecute that person except under the FCPA, but could under money laundering and other laws like I mentioned a few moments ago. So, in terms of practical enforcement, it doesn't really create any impediments—it actually opens the door for DOJ to now have direct charges against those individuals and not have to hunt for a wire to the U.S. and could actually just enforce them as just another defendant along with everyone else who they already include as defendants. DOJ's clarified already that FEPA will be exclusively prosecuted by the Fraud Section's FCPA Unit, which, under DOJ guidelines, already has your exclusive jurisdiction as the primary enforcement body under DOJ for enforcing FCPA, so they folded that in. It makes sense, because this isn't like you have created an entirely new unit for it—it would just be duplicative of what the FCPA enforcement's doing. So, I think as a practical matter, Richard, this is not going to be a big lift for DOJ. All the tools you mentioned are exactly the same tools that DOJ and FBI would use for any one of those other cases, so it does create an opportunity for putting more leverage on these officials. Whereas before, I think, from a foreign official perspective, your odds of getting prosecuted were possible, but very slim, particularly if you weren't having U.S. bank accounts or some sort of U.S. jurisdictional hook there. But now you're going to have to think twice about it, because you could be looped in, and even if extradition's difficult, I suspect most people do not want to become an international fugitive if they're indicted. So, it does create a lot of opportunities for pressure to put aside all these sorts of other things that the government can do in parallel to try to put pressure on it.
[10:35] What does FEPA mean from a corporate compliance and foreign policy perspective?
Just to pivot over to some questions for a corporate compliance perspective, is: What does this mean? I think that the quick answer is, I think this expands not only your defendant pool, but also your cooperator pool. You can imagine how powerful it would be for DOJ to not only have potentially people on the inside of a bribe paying conspiracy, but to actually be able to have the person who received a bribe say, "I asked for the bribe. I took the bribe. And Company X, Y and Z paid it to me so I could award them the contact." That's devastating from a defense perspective. It does, I think, dramatically increase the risk profile companies have around the world and obviously corporate compliance programs to think about. It doesn't change the risk—I think it increases it in my opinion.
Richard Bistrong: I'm really interested to deep dive into how this might impact a compliance program and the cultural aspect of it, but I want to return to your earlier words and thoughts about the FCPA, you shared, deliberately had a carve-out for the bribe taker due to diplomatic considerations. Now, Ryan, those diplomatic considerations haven't gone away, so I'm also thinking, "What are the foreign policy implications of this?" Not every country wants to cooperate in extraditing their citizens, even if they're allowed to. And I'm also thinking, "Do you think that country-to-country politics in some of these cases might be a more important priority than for a country or the U.S. asking a country to bring a citizen to face justice?" So, we know those diplomatic nuances are still there. How do you maybe see them playing out in FEPA?
Ryan Rohlfsen: Yes, great question. I do think you've got quite a bit of history now, particularly with DOJ's decision long ago to consolidate enforcement with the FCPA Unit. The FCPA Unit, the people there, are quite expert in foreign relations. I used to joke that half my time was a prosecutor, the other half of my time was being a shuttle diplomat. You have to really engage with foreign counterparts in a very diplomatic way—there's a lot of processes in place at DOJ to make sure people don't go off the rails in those sorts of discussions. Still possible, but again, when we concentrate that down to a group of experts, it's much less likely to occur. Congress, in passing FEPA, recognized those issues and decided that it was worth it—from an enforcement perspective, from a societal perspective—to give DOJ the authority to go after these cases. As a practical matter, though, it's going to be very dependent upon what other countries are involved. As you know, some countries are going to be routinely cooperating with DOJ, day in, day out, and it's not going to be an issue at all. Other countries are going to be more challenging—you may have complete cooperation, or you may not have any cooperation.
One thing we have seen in the past that is probably going to inform how this plays out as a practical matter in the future is that notwithstanding the prior inability to charge under a specific bribery statute a foreign official—and we see it in a lot of these cases that have come out in the last five to 10 years—DOJ has also shared evidence and information they have with their foreign counterparts as part of a two-way street information sharing and basically, in my opinion, reached informal agreements, if not formal agreements, on who's going to prosecute whom. In other words, if DOJ is satisfied that the foreign official, if you will, or foreign individual is going to be prosecuted by the local jurisdiction appropriately, they're not going to try to pile on—they will turn over whatever evidence they have, allow the local agencies to go after the individuals. And then, of course, they'll pursue others, maybe U.S. nationals, that might be not subject to that jurisdiction enforcement. So, I suspect that's going to keep going. In other words, I think there'll be conversations where we could prosecute official A, but if the local prosecutor's office is going to go ahead and prosecute official A anyway, I don't see DOJ looking to duplicate that.
Amanda Raad: The only thing that I would add there is we have to think how broad of a definition of "foreign official" has actually been implemented by the FCPA. When you think about it, there are individuals that may not be at the same seniority as that concern was originally raised for, whether you're talking about somebody very senior in the government that might be targeted under FEPA, that may be what the original thought was. Whereas the way "foreign government official" has been interpreted so far, can include anybody working for a state-owned instrumentality—so, you have a health care professional, and you have somebody working for a university. I'm not sure it raises the same level of political foreign concerns perhaps that may have been originally contemplated.
Ryan Rohlfsen: I agree—I don't know if FEPA is going to help or hurt U.S. business interests. On one hand, you could see it being, as word gets out, that these corrupt officials are just not going to demand payments from U.S. companies, agents, or individuals, because they're like, "We don't want to even touch that." Flip side is maybe perfectly legit foreign officials that are not corrupt, that just get spooked, and they say, "I don't want to even mess with all this and be caught up in it." So, probably not, but time will tell.
[16:05] Can FEPA be leveraged as part of Ethics and Compliance program awareness and implementation?
Richard Bistrong: Ryan, I think you've made it pretty clear that from a risk perspective, now that we've covered end-to-end bribe giving and bribe taking, that it increases the probability of enforcement in terms of an individual or an organization getting swept up in an investigation. For our ethics and compliance team listeners, they might think, "Outside of that, the probability of an issue is going up." What else might this law mean for them in terms of program awareness or program implementation? How can a compliance team utilize or think about this law in terms of their program implementation?
Ryan Rohlfsen: Yes, good question. At its core, it's not really changing necessarily who's being prosecuted—it does, like I mentioned earlier, increase the risk profile of enforcement, because you're still going to be solving for the same issues with anti-bribery, good books and records, and good controls. Because you do have this increase in a defendant pool or in a risk pool, if you will, that may come up, that from a company perspective, I think this does provide some additional ammunition for compliance departments and other departments to have conversations with the business around, "This is a serious risk, and it's only getting higher in enforcement." And so, from a company thinking about it, is trying to ensure they have adequate resources or maybe even getting more resources to reach higher risk employees and business partners in jurisdictions, particularly where you're seeing enforcement, to really make sure they have the resourcing to help out on that.
I would also add in, Richard, that I wouldn't view FEPA in a vacuum. I think, also, there's been a string of DOJ policies over the last year that do get to the heart of corporate compliance and risk and that risk of enforcement. I think probably the most prominent, which I expect to have some guidance any day now from DOJ, is on their new whistleblower policy—that closes another gap. I think, before, you had Dodd-Frank with potential whistleblowers who could get a bounty for companies that are issuers. Here, we know DOJ's now expanding that, so now it's not just issuers—it could be privately held companies. Now, I believe it also further expanded your potential target pool, if you will, for enforcement beyond those that issue stock—obviously, there's a whole bunch of companies that are not only private in and of themselves but might be part of private equity or some other structure.
[18:35] Can FEPA be another way to "say no" to bribery?
Amanda Raad: I think the whistleblower point is such a good one, but just going back to FEPA and how practically organizations can think about perhaps using this. Obviously, there's driving it up the agenda for resources, which is really important, but I think also practically, when you're talking about the difficult conversations that employees may still be faced with on the demand side, a lot of times, I think they're left with saying, "If I give this to you, then I'm at risk. My company is at risk. All of us are at risk—you demanding this, not only can we not do this, and this is putting us at risk, but this is also putting you at risk." Richard, you may have thoughts yourself to share on this, but at least getting people in the frame of mind that there is a real likelihood that they are placing themselves at an increased risk because of this broader legislation, at least for investigation.
Richard Bistrong: Yes, I would double down on that, Amanda. Companies are always trying to help script their commercial teams on how to say "no" to bribery. I think just the narrative of, "That not only puts me in harm's way—it puts you in harm's way," that's like a whole different level of scripting to help people who are working in these high risk and volatile areas as to that challenging question, "How to say 'no'?" What a great point—thank you.
Nitish Upadhyaya: I think picking up on those aspects, this podcast also focuses on culture for good reasons. It's a driver of behavior in organizations, but there's also the wider cultural context for each of these jurisdictions and what it is okay and not okay to do—what customs, traditions, habits, and rituals people have in place. Ryan, I'd be really interested in your view to think about how that cultural context potentially influences the analysis that DOJ put in place, local authorities are putting in place, and compliance teams are when we're talking about the script side. How do you see the cultural context come to bear in the cases that you work on, or you deal with?
Ryan Rohlfsen: I don't think it does. I think that the whole notion that a gift is just a gift in one country, it's a bribe in another, is pretty tough. I don't think DOJ's looking to prosecute someone that gives a bottle of wine or something as a one-off or some sort of small things like that. They're interested if you have a systematic program around it that aggregates up into a lot of money, and that, of course, shows a weakness in controls, compliance, and culture. But they're not looking to prosecute someone for giving flowers to government officials for a funeral or something like that—reasonable things like that that might be very culturally appropriate as much in India as it is in Iowa. So, I don't know that that's going to really move the needle. We're seeing more cooperation in enforcement and, I think, a broader understanding amongst particularly the OECD countries that corruption is bad. I think, obviously, you've got some very big examples here in the last few years. Brazil being front and center, dramatically transforming the landscape there in terms of enforcement. South Africa, to name another, where we've seen a lot of enforcement activity to really try to attack some of the root causes of corruption, in fact, shifting the mindset away. I think the idea from a FEPA angle or enforcing against foreign officials may have been alien a little while ago, but now, I think it might be viewed more in a welcome manner, particularly where—as I mentioned before to tie it back—the law enforcement and the local jurisdiction is also now actively participating versus in the past they may not have. They may not even know or may not even care about a case that came out involving citizens of the country, and now, I think in a lot of countries, you're seeing a lot of interest.
Amanda Raad: I also think that it's not that organizations weren't including the foreign officials in their analysis already—from a culture perspective, they were—it's just there wasn't the extra enforcement hook that you could really proactively use. I think there wasn't really a way to do a bribery and corruption review or investigation and think about the culture that an employee operates in without considering the local culture and the local expectations of all of the local officials. That has been at the core of what we've all been talking about for a very long time. So, I think Ryan's right—there's probably not going to be a huge shift there from the culture perspective. You may just have this extra tool to be able to more directly address it.
Richard Bistrong: Do we think there's also a reputational issue here in terms of if a foreign official ends up getting targeted and that foreign official is talking about the organization of which he or she has interacted with in terms of a bribery conspiracy, guilty or not, the reputational impact on that organization could be catastrophic, especially depending on what kind of work they're in. From an ethics and compliance and cultural perspective, should this raise our radar on, "Be very careful of the words that you're using of ambiguity because you really don't know what's going on with the person that you're interacting with, so be even extra careful now"?
Amanda Raad: I think so. I think you can't have a conversation around bribery, corruption, or risk, frankly generally, without thinking about the reputational impact. I think no matter who you are and what perspective you're coming at it, it has to be a huge driving factor, because reputational impact also means financial impact, which goes to the core of what companies are trying to achieve.
[24:40] Is extradition an impediment to FEPA enforcement?
Richard Bistrong: I guess my final question, Ryan, is do you think extradition—that's ultimately what this is going to come down to—is going to happen? There are so many winds against it happening, and we've seen just the difficulties in it all, but that's where this all happens to end up, with someone facing a U.S. federal district court. Any thoughts about that?
Ryan Rohlfsen: I actually don't think extradition is going to be the key here. I think the pressure that can be brought to bear in enforcement is more than enough. There's a whole bunch of cases where foreign officials are cooperating in cases—it's because they recognize that there's two paths when they're caught. These are people who have been caught and at some point, have admitted to what they've done. They know what they've done is wrong and even if their local country's not prosecuting them, they don't want to spend the rest of their lives as a fugitive. And so, they make the calculation, "Yes, I guess I could fight extradition through the next 10 or 20 years of my life and never leave my home country and hope that there isn't some sort of regime change wherever I live that decides that I'm going to be extradited. Now, I've wasted all this time hiding in a corner and really not been able to live my life." A lot of individuals make the choice to say, "I'm not going to fight extradition. I'm going to cooperate, try to take the benefits from that, and then move on with my life," whatever that is. Certainly, a lot of individuals who believe they are being wrongly prosecuted, think there's not evidence of that, will of course fight extradition as they should, and fight subsequently on the merits as well, ultimately if needed.
I think just the fact of the prosecution and the ability to take all those tools you mentioned at the top of this podcast that the FBI was talking about—trying to go after property, seizing bank accounts, going after foreign assets—are really serious things that would come to bear if you were an individual defendant, you're an official in another country. Then, put on top of that all this information comes out in the public—odds are you're going to lose your job, you're going to face scrutiny locally. So, there's just a lot there. Extradition proceedings are really going to be the exception. They're going to happen for sure. They're going to be big fights for both sides. But I think most of them are not going to come to that. I think the reality is that this is ultimately going to increase the number of cooperators and potential defendants in cases, and I think from that end, it will allow DOJ to effectively bring more cases against companies and individuals going forward.
Nitish Upadhyaya: That is a healthy dose of reality. Thank you, Ryan, for dispelling some of the myths that might have arisen around FEPA and giving us a sense of where you think it's going to end up. I suspect we have lots of key takeaways, but I'm going to ask Amanda and Richard to give me one each, just to round us off. So, Amanda, what's your biggest takeaway from our conversation with Ryan?
[27:30] Takeaways from the conversation.
Amanda Raad: I think my biggest takeaway was really that closing Ryan just gave there. It really doesn't necessarily matter what the final tally is on these metrics, but instead, on the fact that there's very likely to be more enforcement activity, generally speaking, around these issues. I think for better or worse, ethics and compliance professionals are always looking for legislation that can help them move these topics up the agenda within an organization, and I think this is a tool that really can be used. I don't think we need to spend a lot of time thinking about the long-term final tally—you should use it for what it is.
Nitish Upadhyaya: Richard, what about you?
Richard Bistrong: First, I'm going to share a personal takeaway. Fifteen years ago, I was sitting on the other side of a well-worn conference table from Ryan, and he was asking all the questions at the Department of Justice, and I'll just make judicial note that he said, "Great question," to me here twice. As one of the defense attorneys said to me under cross-examination, "Mr. Bistrong, tap yourself on the shoulder for that one." So, I'm very happy to have had this conversation on the same side of the conference table with Ryan. I really did leave with a lot more clarity from this conversation. I think the awareness of risk in terms of ethics and compliance leaders and for the commercial teams, this is, for lack of a better term, a tool I think to help raise that ethical radar and reputational radar. The risk out there—you might think you're far away from home from a regulatory perspective, but you're not as far away that you think you are. Ryan, Amanda, and Nitish, what a wonderful conversation. Thank you.
Nitish Upadhyaya: Ryan, before we let you get away, there is one thing that I'm burning to ask, because I know there's a story I suspect listeners will be intrigued by your special talent which you failed to mention. In your three interesting things that readers should know about you, you mentioned cocktail parties and discussing "FEH-pa" or "FEE-pa," but why don't you give us a sense of your unique talent when it comes to cocktail making?
Ryan Rohlfsen: I don't want to leave everyone with the wrong impression here. You remember during COVID, there was that whole time when you weren't sure how to end the day, and so, everyone had their virtual cocktail parties. Instead of trying a different cocktail every day—for I don't know how many months it was—I just decided to keep trying to redo a martini until I found the perfect martini. So, I figured out, at least in my mind, the perfect martini. If we're in the same place, just let me know, and I'll mix you up a good martini.
Nitish Upadhyaya: That sounds like a wonderful dinner date: Ryan doing martinis and explaining FEPA. It's a grand way to leave this. Where can listeners find out more about your work if they do want to connect and hit you up for that wonderful cocktail?
Ryan Rohlfsen: You can find me at ropegray.com for sure, also on LinkedIn. And you can find this podcast on Spotify, Apple, and everything else. But I'm always around somewhere, so reach out any day.
Nitish Upadhyaya: Amazing. Thank you so much, Ryan, for such a wonderful conversation and helping us dive deeper into the mysteries of FEPA. Thank you all for tuning into the latest episode in our Culture & Compliance Chronicles series. As Ryan did for us, if you want to find out and subscribe to the rest of the series, you can indeed find us on Apple and Spotify. If you want to understand more about the ideas that we've discussed today, take a look at the links in our show notes. Amanda, Richard, and I will be back very soon for our next chapter. To that end, if you do have ideas, thoughts, or topics you want us to dive into, let us know. Thanks again for listening and see you very soon.
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