One thing that critics of the Foreign Corrupt Practices Act constantly flail is the (alleged) lack of individual prosecutions under the law. They claim that if the Justice Department or Securities and Exchange Commission went after more individuals, this tactic would get the word out to the business community not to violate this 37-year-old law. Of course business organizations that advocate this approach also claim that these “rogue” employees were really the ones at fault, and the companies should not be fined or penalized for their few bad employees.

How about naming and shaming? I thought about that concept when I read article in the Sunday New York Times by Gretchen Morgenson, in the Fair Game Column, “Neglecting to Name the Names.” In this piece she criticized a recent SEC enforcement action involving Citigroup over the sale of certain municipal bonds. Citigroup agreed to pay a $181 million fine and did not admit or deny any of the allegations made by the SEC.

Morgenson wrote: “Most disturbing, though, is the settlement’s lack of accountability. As is all too common, Citigroup’s shareholders are footing the $180 million bill associated with it. But they didn’t devise the toxic bond strategy, sell it, or hide its risks to investors.” The SEC order, however, laid out the entire strategy for the violations, making clear it was the responsibility of Citigroup employees and not the bank itself.

In the Citigroup settlement, the SEC specifically cited a Citigroup ‘fund manager’ as leading the illegal efforts, but “the S.E.C. never identifies who this central player was.” Morgenson, meanwhile, went ahead and named the former Citigroup fund manager involved in the scam, in her article. Morgenson quoted from Phillip Aidikoff, a lawyer representing investors against Citigroup in civil litigation for the following: “It’s easy for Citi to write a $180 million check. When you have the folks who not only designed this program, but ran it and ran it into the ground—why aren’t they being named?”

This SEC settlement is much like the vast majority of FCPA settlements made by the Justice Department. Bribery and corruption schemes are laid out in great detail in deferred-prosecution agreements, non-prosecution agreements, and other settlements. Yet the Justice Department does not name the individuals involved, identifying them as “Executive 1,” “Officer 2,” “Employee 3,” and the like. Would it help enforcement if those employees involved were identified?

If such persons were named, it might help get the word out that people really do need to follow the law and violate the FCPA. 

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