If you are old enough to remember the days of yore when cigarettes were advertised on television, you may remember the phrase “I’d rather fight than switch!” This old adage came to mind when The Man From FCPA read a couple of recent articles that companies in Europe wanted to not only fight the U.S. government on claims of illegal conduct but also attempt to negotiate in public with the U.S. Justice Department over fines and penalties. The first was the Swedish telecom firm, Telia. The second is the venerable German banking giant, Deutsche Bank.

In an article in the Wall Street Journal, it was reported that the U.S. Justice Department and Dutch authorities are “asking Swedish telecom carrier Telia Company AB to pay $1.4 billion to settle allegations it distributed hundreds of millions of dollars in bribes to secure business in Uzbekistan” all in violation of the Foreign Corrupt Practices Act. While the company has admitted its sins and publicly stated it is prepared to take “full responsibility,” it has balked at the proposed resolution amount, with the company chairwoman stating, “our initial reaction to the proposal is that the amount is very high.” The proposed amount “would be almost twice the $795 million in civil and criminal penalties that Amsterdam-based VimpelCom agreed to pay to U.S. and Dutch authorities in February as part of a similar case.”

In the second matter, as reported by Reuters, Deutsche Bank is facing claims it mis-sold residential mortgage backed securities before 2008. The U.S. Justice Department has demanded a penality of $14B. The article reported the bank viewed this demand as an “opening shot” in negotiations. In a statement the bank said, "Deutsche Bank has no intent to settle these potential civil claims anywhere near the number cited. The negotiations are only just beginning. The bank expects that they will lead to an outcome similar to those of peer banks which have settled at materially lower amounts."

Experience has clearly shown that when negotiating with the US Justice Department, the public route is definitely NOT the way to go. Avon publicly suggested a penalty of $12M was appropriate for its bribery and corruption in China. The company settled at $135 million. Moreover, negotiating in public is not seen as providing the requisite level of corruption the Justice Department typical expects.

It will certainly be interesting to see how all this plays out, even behind closed doors. 

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