Last week, in what marked the first FCPA enforcement action of 2019, a federal grand jury in New Jersey returned an indictment against two former high-level executives—the president and chief legal officer—of Cognizant Technology Solutions Corporation, a New Jersey-headquartered information technology service provider. Contemporaneously, the Fraud Section and the New Jersey U.S. Attorney’s Office made public their decision to decline to prosecute Cognizant pursuant to the FCPA Corporate Enforcement Policy. The declination was given notwithstanding the presence of at least one significant aggravating factor—direct participation in the alleged criminal bribery scheme by two of the company’s most senior executives. This development provides valuable insight into the Department’s approach to applying the FCPA Corporate Enforcement Policy going forward, and reaffirms DOJ’s continued focus on pursuing individual wrongdoers, the importance of effective compliance programs, and the Department’s efforts to encourage companies to root out bad actors in the wake of misconduct. Executives, boards of directors, special committee members, and anyone else weighing the merits of the FCPA Corporate Enforcement Policy should take notice that aggravating factors will not necessarily extinguish the incentives and potential reward in the form of a declination for companies that avail themselves of the policy.
I. THE ALLEGED SCHEME -
According to the Cognizant declination letter, the company’s personnel authorized a third-party construction company to pay approximately $2 million to government officials in India in order to obtain a permit necessary for the construction of an office park. Cognizant later reimbursed the construction company through inflated invoices and change orders at the end of the project. The scheme also involved falsifying the company’s internal books and records and making false certifications required by SarbanesOxley regulations.
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