On June 15, Joseph Sigelman signed a plea agreement to plead guilty to conspiracy to violate the Foreign Corrupt Practices Act. The Justice Department made the announcement in a press release. The next day he was sentenced by Judge Joseph Irenas to probation and fined $239,000 for his role in a bribery scheme involving the company where he had been co-chief executive officer, PetroTiger.

Sigelman’s plea was the third involving former PetroTiger officers. The two former officers were co-CEO Knut Hammarskjold, who pleaded guilty to the same charges, and former general counsel Gregory Weisman, who pled guilty in 2013 to one count of conspiracy to violate the FCPA and to commit wire fraud.

The Sigelman conviction ended a long-running FCPA investigation and enforcement action involving PetroTiger. In addition to the three executives who pled guilty, the company itself received a declination to prosecute from the DoJ. This declination may, in the final analysis, be the most significant piece of information to come out of this entire affair.

The Sigelman conviction was rather routine, except that Sigelman had chosen to fight the FCPA charges against him rather than plead guilty as Hammarskjold and Weisman had. Sigelman had fought the FCPA charges against him tooth and nail throughout the pretrial proceedings, challenging the government’s use of wiretaps recorded by his former GC Weisman after Weisman became a cooperating witness for the government. Sigelman challenged the government’s official status of the person to whom the bribe was allegedly paid. He challenged the status of Ecopetrol SA, Colombia’s state-controlled oil company, as an instrumentality covered by the FCPA.

Other than the court’s pretrial rejection of Sigelman’s argument that conversations between himself and Weisman were protected by attorney-client privilege, the trial court resolved none of Sigelman’s substantive defenses to the FCPA charges. With Sigelman’s guilty plea, it would certainly be appropriate to say the defendant withdrew these defenses via his plea agreement. While there was much braying among some of the FCPA commentariat about the collapse of the DoJ case at the trial against Sigelman, the reality is that he pled guilty to conspiracy to violate the FCPA and agreed to pay restitution for his actions.

The trial against Sigelman ended abruptly after the prosecution’s prime witness, Weisman, admitted on cross-examination that he had given false testimony in a portion of his direct examination. This led the trial judge to ask, “Did you have a hallucination” while providing prior testimony. Take it from a recovering trial lawyer—when a trial judge asks that question, you’ve lost the judge. And if you’ve lost the judge, you probably lost the jury as well.

What does the Sigelman conviction mean for FCPA enforcement going forward? Probably not much, if anything at all. The most important item to note is that the Justice Department does not lose all of the cases it takes to trial.

What does the Sigelman conviction mean for FCPA enforcement going forward? Probably not much, if anything at all. The most important item to note is that the Justice Department does not lose all of the cases it takes to trial. Somehow those who criticize the department conveniently seem to forget that it secured convictions in the trials of both Joel Esquenazi and Carlos Rodriguez for substantive violations of the FCPA. Indeed, after the jury convicted, the trial judge sentenced the two men to the longest sentences ever handed down for convictions of violating the FCPA: 15 years for Esquenazi, seven for Rodriguez. The district court also entered a forfeiture order holding Esquenazi and Rodriguez responsible for nearly $3.1 million.

The commentators, who have focused on their perceived failure of the Justice Department at the Sigelman trial, have missed the true significance of the entire PetroTiger FCPA affair. Quite simply you have both co-CEOs and the GC directly implicated in the FCPA violations, yet the company itself received a declination from the Justice Department.

Timothy Treanor, partner at Sidley Austin and the lead outside counsel heading PetroTiger’s internal investigation said, “You don’t get more senior than that in management, and the conduct was squarely within the area of practice of the company. It was in the company’s interest. It was for purposes of securing an oil-field services contract. There were no jurisdictional questions, really. There was no statute-of-limitations defense, and so you have a firmly established offense right at the highest levels of management—and this company got a declination. I think that makes it a pretty unique example of the results that companies can obtain, but it stands somewhat alone. I mean, it’s in a category with Morgan Stanley perhaps, although even there, you didn’t have the CEOs and the general counsel. You had an investment banker.”

When asked how PetroTiger sustained this rather amazing result, Treanor gave four reasons he put forward to prosecutors. First: “We were able to show very clearly from early on ... That was the first transaction that the private equity firms were involved in with PetroTiger, and they were defrauded by the managers, by their business partners.” Second was that the three convicted managers were not disclosing the financial condition of the company to the board accurately. “The board was very aggressive in demanding disclosures and in trying to institute reforms to put in place a code of conduct,” he said.

Next, Treanor said, “We were able to establish a struggle that showed that the board members were not turning a blind eye to misconduct. They were not interested in profiting from corruption. They, in fact, were very aggressively trying to establish an environment of integrity.”

Finally, with the thorough internal investigation and the actions of the PetroTiger board in cooperating and remediating during the FCPA investigation, Treanor was able to put forward to the Justice Department, “If you punish this company in any way, you’re re-victimizing the individuals who the managers had treated improperly consistently, and it’s not going to serve any purpose. You’re really just going to heap more misery on people who frankly you could not have expected to do more under the circumstances.”

“I think that argument was very effective,” he continued. “The offensive conduct was not the crime of the century. Of course, it wasn’t the largest FCPA offense that we’ve seen, so that was, I think, another factor. I think all of that amounted to a compelling story that a declination was appropriate.”

So while the Justice Department’s naysayers and critics howl over the Sigelman trial ending, I think they have all missed two crucial factors. The first is that Sigelman pled guilty to conspiracy to violate the FCPA and was punished for his actions. But for chief compliance officers, general counsels, audit committee members, and boards of directors, the message is much stronger and clearer. By aggressively investigating, remediating, self-reporting, and cooperating with the government, your company can make comeback from having senior executives actively involved in bribery and corruption.

And that is a good conclusion for compliance officers to point at.

 

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