Friday, July 22, 2011
The News Corp Scandal Predictions
You can count on several important events to occur in the News Corp bribery and hacking scandal.
First, the cover up, or attempts to avoid knowledge and liability, will be worse than the crime itself. Already there are allegations circling that James Murdoch may not have been candid in responding to Parliament's questions
Second, News Corp will try to feed the media's appetite by firing and/or removing "responsible" officials in order to cut its losses. That has already started and will continue.
Third, the political forces, especially in the UK since this reaches all the way to Prime Minister Cameron's office, will play a big role in how prosecutorial discretion will be exercised. In the US, the political winds will be strong since a Democratic Administration has an opportunity to investigate News Corp and the Murdoch family, a known political opponent. The fact that Democratic Senators are requesting an investigation is of very little moment. What is more important is that the Justice Department's tools are available to investigate News Corp for a very serious crime -- foreign bribery.
Fourth, News Corp's Board, management and individuals will hire lawyers to represent them in the UK, the US and with News Corp's corporate counsel. The white collar bar is looking forward to this case and the complexities of it.
Those who follow the Justice Department know that what is about to unfold will not follow the usual script when it comes to FCPA matters. Typically, a company will make a voluntary disclosure to the Justice Department and buy itself time to conduct a thorough internal investigation and report back to the Justice Department on its findings. During the investigation, the Justice Department will stand down -- subpoenas, grand jury and other investigative tools will be held in abeyance pending the internal investigation. It is very unlikely that the Justice Department will stand down and let News Corp conduct its own internal investigation. To the contrary, the Justice Department is likely to staff up, conduct a comprehensive investigation in coordination with its UK counterparts (which already has 60 agents assigned to the case), and tell News Corp to conduct a simultaneous internal investigation.
The situation should get very interesting very quickly. Subjects of the investigation are likely to get interview requests from the Justice Department/UK and from News Corp's outside counsel. The government may learn information before News Corp. It will be very difficult for News Corp outside counsel to conduct a timely internal investigation, especially with two government enforcement agencies looking at the same conduct.
Along the way you can expect there to be some interesting discussions between the US and the UK prosecutors. The UK has a good argument for a lead role since the bribery occurred in the UK. The US has a good argument since the foreign bribery committed by a US-based "issuer" is right in the wheelhouse of FCPA prohibited conduct. The UK has a strong negative since the UK laws are not as clear cut since the UK Bribery Act does not apply to the conduct which occurred prior to July 1, 2011, the effective date of the new law.
You can already predict who will win the tug-of-war: the country with the greater political need. Since the case threatens the Cameron Administration, the UK will argue strongly that it has a greater interest in the conduct given the public outrage in the UK. The US may defer to its anti-corruption enforcement partner. However, it plays out this may be an interesting case to see how the US-UK law enforcement relationship really works.