Matthew Miner DOJ

A U.S. Justice Department official Thursday stressed international collaboration in fighting white-collar crime and offered new details on this week's foreign bribery case against TechnipFMC.

In remarks prepared for delivery at the American Bar Association's Third Global White Collar Crime Institute conference in Prague, Matthew Miner noted that the $296 million Technip resolution was coordinated with authorities in Brazil and $214 million of the U.S. criminal penalty was credited to that country.

“Large international investigations like the one against Technip require more than just the resources of the Department of Justice, acting alone,” said Miner, DOJ's deputy assistant attorney general.

Besides Brazil, he said, “The governments of the United Kingdom, Monaco, Italy, Australia, France and Switzerland provided significant assistance to further the investigation. The coordinated law enforcement effort in the Technip investigation is far from an outlier.”

DOJ's “anti-piling on” policy tries to ensure that companies are not over-penalized, he added, as in crediting Technip for the amount it paid to settle its Brazil case for the same misconduct.

Houston attorney Ryan McConnell, of the R. McConnell Group, said, of the anti-piling on policy, “Miner is a thoughtful lawyer with significant private sector experience, and it shows. There is nothing worse for a general counsel than paying millions of dollars to U.S. regulators to resolve an investigation, believing the matter to be over and fairly resolved, to then have another foreign or state regulator that was not part of the original investigation use the admissions from the original settlement to launch another prosecution seeking millions more.”

In other key statements, Miner said:

• DOJ's policies are not just for domestic companies. “Last year we declined prosecution of Guralp Systems Limited, not only because of the company's voluntary disclosure, remediation and cooperation, but also because Guralp, a U.K. company with its principal place of business in the U.K., was the subject of an ongoing parallel investigation by the U.K.'s Serious Fraud Office for violations of law relating to the same conduct.”
• In addition, DOJ's recently revised corporate compliance guidance will be applied not just to U.S. companies, “but also to companies globally—and it recognizes the range of compliance challenges confronted by companies across industries, risk profiles, and the globe.”
• The work of prosecutors is being increasingly impacted by digital evidence. “Virtually every criminal scheme we investigate requires access to electronic evidence, such as the contents of emails and instant messages, and subscriber information.”

But Miner said the ability to investigate and prosecute international criminal schemes is often affected when “global companies and their subsidiaries that hold key evidence are often subject to more than one country's laws. Further complicating matters, data privacy and other restrictions are an evolving area, whether it relates to the European Union's General Data Protection Regulation, or state secret laws in countries like China.”

He explained that companies and their general counsel must understand “that when we request data that the company claims it is precluded from providing to us, the company bears the burden of establishing the prohibition.” If a company determines that it is unable to provide information, “we will expect a detailed explanation as to why,” Miner said.

McConnell, a former federal prosecutor, said some countries have blocking statutes, for example, that preclude compliance with certain U.S. sanctions laws, or have privacy laws that restrict data movement out of the country.

“You have some outside counsel advising companies on the other side of a DOJ investigation that try to figure out how to work within the laws to cooperate with DOJ,” he said, “and there are others that just throw their hands up in the air. Miner and the DOJ know the difference.”