AT: One of the things that is difficult about
the data the Commission publishes is it cap-
tures only convictions, not settlements. As
you know, there are very few large companies
that fight that long. They generally all settle.
Do you think we’ll ever be able to start seeing
data on settlements in an aggregated form?
KG: Well, let’s distinguish first between
civil and criminal cases. I would not ever
expect that the Commission would collect
or receive any information about civil settlements. That is so far outside our wheelhouse.
The reason that Commission data is currently limited to criminal sentences is quite
simple. The Commission’s statute currently
includes a directive to the chief judges of the
district courts requiring them to ensure that
the Commission receives a written report of
sentence and five specified documents for
every criminal case, within 30 days following
entry of judgment in the case. This documentation provides the Commission with the data
that it collects and reports. Criminal cases
that are resolved by way of a deferred prosecution agreement (DPA) or a non-prosecution
agreement (NPA) do not fall within the scope
of that directive. Nothing in our statute compels either the courts or the Department of
Justice to provide us with documentation
about those criminal cases. Unless and until
that changes, you should not look to the
Commission for release of data about DPAs
and NPAs in any aggregated form.
I recall in the not-too-distant past that
there was congressional interest in learning
about corporate criminal cases being resolved
by way of those types of settlement agreements. In fact, there was draft legislation
calling for public disclosure of all such agreements. Around that time, Congress requested
and received from the Department of Justice
a list of cases resolved by way of DPAs and
NPAs. So Congress has the power to require
the Department of Justice to report this data.
AT: Finally, let me ask if there are any
general words of advice you would offer for
compliance professionals from what you see
at the Commission?
KG: My advice is to urge compliance professionals to keep fighting the good fight.
You have made extraordinary strides in the
last 25 years. Since 1992, the Commission
has collected data on 4,427 organizational
cases. Considering that recent census data
reported that there are millions of organizations doing business in the U.S. — the
relatively small number of those sentenced
in the past 25 years suggests that compliance
and ethics programs are working to deter
I would also note that in only ten of
those cases did the organization receive
credit for having an effective compliance
and ethics program. I view this as another
positive statistic. Having an effective program works to position a criminally liable
organization to obtain a better resolution
of the criminal case or even avoid criminal prosecution — always a good thing to
Know your areas of risk. To that end,
Commission data might provide some interesting tidbits for healthcare compliance
professionals. Every year, fraud is one of the
two top types of offenses for which organizations are sentenced, and healthcare fraud
contributes to the prevalence of fraud cases.
Food and drug violations also fall within the
Finally, do not hesitate to tell the
Commission, if and when the time comes, to
incorporate industry advances about effective compliance and ethics programs into the
Guidelines. We rely heavily on your expertise in this area.
AT: Thank you, Kathleen, for taking the
time to do this interview.