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The decision to make the letters of declination public is a significant change from past practice, says James Koukios, a partner at law firm Morrison Foerster and a former senior deputy chief of the DoJ's fraud section.
Koukios raises some concerns about the DoJ's decisions to decline prosecution only when a company disgorges profits stemming from the wrongdoing, which has been the case with each of the four declinations so far.
"I understand the gut reaction, that companies shouldn't keep tainted money," he says.
But requiring companies to disgorge profits when they've acted quickly and thoroughly to stop the activity and prevent future problems may prompt companies to question whether self-reporting and cooperating with the enforcement agencies actually will pay off.
"There's no perfect solution," he adds.
"It's a notable percentage," Koukios says.
Until recently, the SEC and DoJ brought most FCPA cases almost in parallel with each other, Koukios says.
This year to date, four of the resolutions have been parallel, and ten have been only from the SEC.
"The DoJ has become more circumspect in the cases it will bring," says Koukios.
It then can shift resources to other cases, including those in which the SEC doesn't have jurisdiction.
In addition, by limiting the number of parallel cases to those in which the companies under investigation decide not to work with the government and fail to take remediating action, the DOJ emphasizes the importance of mitigation and cooperation, Koukios says.
Browse:Home / Keynote and Faculty Bios / Faculty: James M. Koukios
Faculty: James M. Koukios
James KoukiosJames M. Koukios is a partner in the Securities Litigation, Enforcement & White-Collar Defense Practice Group at Morrison & Foerster LLP.An experienced trial attorney and former federal prosecutor, Mr. Koukios has tried over 20 federal jury cases, including serving as the lead prosecutor in two landmark FCPA-related trials, United States v. Esquenazi and United States v. Duperval.Prior to joining Morrison & Foerster, Mr. Koukios served as the Senior Deputy Chief of the Fraud Section in the Criminal Division of the U.S. Department of Justice (DOJ).
In that role, he supervised investigations, prosecutions and resolutions in the Fraud Section's FCPA, Health Care Fraud and Securities and Financial Fraud Units.
Mr. Koukios was an Assistant Chief in the Fraud Section's FCPA Unit from 2012 to 2014, directly supervising some of the Unit's most high-profile matters.He assisted with drafting the DOJ and SEC joint publication, A Resource Guide to the U.S. Foreign Corrupt Practices Act, which followed a series of consultations with business and compliance leaders.
He was also a lead examiner for the Phase 2 examination of Russia's compliance with the Anti-Bribery Convention of the Organisation for Economic Co-operation and Development (OECD).As a line prosecutor in the Fraud Section from 2009 to 2012, Mr. Koukios investigated and prosecuted numerous individuals and corporations for violations of the FCPA and other white-collar crimes.Mr. Koukios was the lead trial lawyer for the United States in the seminal Esquenazi FCPA trial and the Duperval money laundering trial.
The Esquenazi trial resulted in the first appellate decision on whether and when a state-owned enterprise qualifies as an "instrumentality" under the FCPA.
The Duperval trial resulted in the first jury conviction of a foreign official on money laundering offenses related to the FCPA and was also affirmed on appeal.
For his work on these matters, he received the Assistant Attorney General's Distinguished Service Award.
While at the Fraud Section, he also gained significant experience in investigating and prosecuting individuals and corporations for health care fraud and other white-collar crimes.
From 2010 to 2011, Mr. Koukios served as Special Counsel to FBI Director Robert S. Mueller, III, advising the Director and other FBI executives on criminal policy issues, preparing FBI Executive Management for congressional testimony, representing the FBI at interagency meetings, and acting as a liaison between FBI and other DOJ components.
From 2005 to 2009, Mr. Koukios was an Assistant United States Attorney (AUSA) in the Southern District of Florida.As an AUSA, he represented the United States in hundreds of proceedings, served as trial attorney in 19 federal felony jury trials, and prosecuted fraud, public corruption, export control, money laundering, narcotics, violent crime, and immigration offenses.Among several notable cases, Mr. Koukios was a lead prosecutor in United States v. AEY, Inc., et al., a defense procurement fraud case featured on the front page of The New York Times.
Throughout his decade-long service as a federal prosecutor, Mr. Koukios worked closely with state, federal, and foreign law enforcement officials, as well as the U.S. Securities and Exchange Commission, U.S. Departments of Defense, State and Commerce, and intelligence agencies.
Following law school, Mr. Koukios clerked for Judge Edith Brown Clement in the U.S. District Court for the Eastern District of Louisiana.
In 1999, Mr. Koukios graduated cum laude from Harvard Law School, where he served as supervising editor for the Harvard Journal on Legislation, and earned his B.A. with highest distinction in 1996 from the University of Michigan, where he received the William Jennings Bryan award, given annually to the top political science graduate.Mr. Koukios has been recognized by the Ethisphere Institute among the "Attorneys Who Matter" and frequently speaks on anti-corruption and compliance issues.
He is an adjunct professor of trial advocacy at Georgetown University Law Center.
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