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Biden Administration Issues New Government-Wide Anti-Corruption Strategy

On Dec. 7, 2021, the White House published a government-wide policy document entitled “United States Strategy on Countering Corruption” (“Strategy”). The Strategy implements President Biden’s National Security Memorandum from earlier in 2021, which declared international corruption a threat to U.S. national security.

The Strategy is notable for several reasons:

First, the Strategy focuses not just on the “supply side” of foreign bribery and corruption—that is, companies acting in violation of the Foreign Corrupt Practices Act (FCPA)—but also on the “demand side” of the equation, namely corrupt foreign officials and those who assist them. It promises to pair vigorous enforcement of the FCPA with efforts to hold corrupt leaders themselves accountable, via U.S. money laundering laws, economic sanctions, and visa restrictions.

Second, the Strategy specifically calls out the role of illicit finance in facilitating and perpetuating foreign corruption, promising “aggressive enforcement” against those who facilitate the laundering of corrupt proceeds through the U.S. economy. Professional gatekeepers such as lawyers, accountants, and trust and company service providers are specifically identified as targets of future scrutiny. The Strategy also promises to institute legislative and regulatory changes to address anti-money laundering (AML) vulnerabilities in the U.S. financial system. These promised changes include:

Finalizing beneficial ownership regulations, and building a national database of beneficial owners, as mandated by the Anti-Money Laundering Act of 2020.
Promulgating regulations designed to reveal when real estate is used to hide ill-gotten gains. Contemporaneously with the White House’s issuance of the Strategy, the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued an Advance Notice of Proposed Rulemaking (ANPRM), inviting public comment on its plan to apply additional scrutiny to all-cash real estate transactions.
Prescribing minimum reporting standards for investment advisors and other types of equity funds, which are currently not subject to same AML program requirements as other financial institutions.

Third, the Strategy calls for a coordinated, government-wide response to corruption, and it contemplates a role not only for law enforcement and regulatory agencies but also for agencies such as the Department of State and Department of Commerce, which is to establish its own new anti-corruption task force. It remains to be seen if the increased scope of anti-corruption efforts called for by the Strategy will result in new or additional penalties for persons and entities perceived as corrupt or as facilitating corruption, but the Strategy may place an additional premium on corporate anti-corruption compliance.

Individuals and entities operating in sectors traditionally associated with corruption and/or AML risk should consider taking the following steps in response to the Strategy. These considerations apply not only to U.S. persons and businesses but also to anyone who may fall within the broad purview of the FCPA, U.S. money laundering statutes, and other laws with extraterritorial reach:

Increase due diligence for any pending or future transactions in jurisdictions where potentially corrupt actors or their designees play a role in awarding government contracts. Ensure any payments are the result of arms-length transactions based on legitimate financial arrangements.
Professional gatekeepers should become familiar with the particular risks associated with the industries in which they operate. While AMLA made it clear that lawyers, accountants, and real estate professionals will come under increased scrutiny based on the risk profile of their clients, the Strategy increases the likelihood that law enforcement will devote additional resources in this sometimes-overlooked area.
Given the increased role the State Department will continue to play in the anticorruption space based on the National Defense Authorization Act and the Strategy, companies doing business in or with countries vital to U.S. foreign policy goals should remember that in addition to the individual leaders of these countries, government institutions and lower-level officials could create risk and will be closely watched. Though the U.S. government often talks about specific government officials, the Strategy appears to take a broader approach.
Businesses should continue to examine and reexamine third-party risk with an emphasis on preventing potential problems before they occur. Additional resources and increased cooperation between and among government agencies may lead to additional investigations and enforcement actions, so compliance programs should be updated where necessary.

Article By Kyle R. Freeny and Benjamin G. Greenberg of Greenberg Traurig, LLP

For more white collar crime and consumer rights legal news, click here to visit the National Law Review.

FCPA Landmines Beneath the Surface of the COVID-19 Crisis

COVID-19 took the world by surprise and continues to spread across the globe in more than 210 countries and counting. The outbreak in the United States escalated rapidly, with over 585,000 confirmed cases as of April 14, 2020. The federal government and a number of hard-hit states were caught off guard, and soon learned that their inventories of personal protective equipment (“PPE”) and other life-saving equipment such as test kits and ventilators were insufficient to keep pace with the pandemic. The demand for equipment to fight COVID-19 skyrocketed and government and commercial entities have shifted into high gear to respond. Whether motivated by humanitarian concern or commercial enterprise, many state and local governments, companies and individuals are now looking abroad to procure critical supplies on an expedited basis. At the same time, many foreign industrial manufacturers are positioning themselves for the high demand of exports by adapting their facilities to produce PPE. For example, Chinese electric car maker BYD announced on March 13, 2020 it is now the largest face mask factory in the world—less than one month after converting its facilities in response to the pandemic. In the midst of these exigent circumstances, the global supply chain landscape is replete with Foreign Corrupt Practices Act landmines—and well-intentioned companies hoping to partner with foreign PPE manufacturers could become a casualty if they don’t watch their step.

Anticipated FCPA Enforcement in the Wake of the COVID-19 Pandemic

The Foreign Corrupt Practices Act of 1977 (“FCPA”) makes it unlawful for any commercial enterprise, or individual representing one, to offer, promise to pay, or direct or authorize another individual to pay money or anything of value to a foreign government official for the purpose of expanding or maintaining their commercial interests. 15 U.S.C. §§ 78dd-1, et seq. The FCPA also requires publicly traded companies “make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer.” Id. The statute has a criminal and civil bite; the DOJ is responsible for all criminal enforcement of the FCPA and civil enforcement of its bribery provisions, and the SEC is responsible for civil enforcement of the FCPA’s “books and records” provisions if securities are involved. The DOJ and SEC rarely enforced the FCPA in its first three decades of existence. These agencies, however, have aggressively interpreted and enforced the law since the turn of the century. From 2000 to 2019, the DOJ brought 235 enforcement actions and the SEC brought 168 enforcement actions, together involving over $11 billion in monetary resolutions. In 2019, the U.S. Government collected more in a single year through DOJ and SEC actions against companies in FCPA cases than ever before. There are several FCPA-related considerations for companies to keep in mind as they navigate business during the COVID-19 pandemic.

Indeed, U.S. companies would be wise to assume the government will persist in its aggressive “a bribe is a bribe” approach to the FCPA, even in the midst of a worldwide health crisis. First, corruption tends to thrive in times of crisis. Weaknesses in governmental systems become exposed, and those with nefarious intent, or just too much aggressiveness, seize on the opportunity to exploit the panic, fear and suffering that accompanies disasters. Increased corruption, in turn, often results in increased enforcement. The financial crisis of 2008, for example, increased FCPA enforcement. As companies faced pressure to obtain business and even maintain operational status during the crisis, their focus on FCPA compliance decreased. The global economy came to a halt, and many companies decided to quickly merge and consolidate. The speed of these consolidations resulted in the discovery by some acquiring companies of questionable payments and accounting practices both pre- and post-merger, resulting in increased FCPA compliance risks. The DOJ and SEC were alerted and brought more FCPA enforcement actions and imposed higher civil fines from 2008 to 2011 than ever before.

Second, although the current administration has not directly addressed whether and to what extent it will pursue FCPA enforcement actions as a result of the COVID-19 pandemic, the DOJ and SEC have announced their intent to prioritize coronavirus-related fraud schemes. For example, on March 20, 2020, the DOJ issued a press release announcing that Attorney General William P. Barr “is urging the public to report suspected fraud schemes related to COVID-19” and directing all U.S. Attorneys to prioritize investigating and prosecuting such schemes. Four days later, the DOJ established the COVID-19 Hoarding and Price Gouging Task Force “to address COVID-19-related market manipulation, hoarding, and price gouging.” Given the global supply chain pressure points and implications of the COVID-19 crisis, it would not be a stretch for the administration to extend its prioritization of such COVID-19-related fraud cases to include COVID-19-related global anti-corruption and bribery cases.

Third, the federal government is in the process of rolling out over two trillion dollars in aid and recovery funding in response to the coronavirus pandemic, and it likely will be eager to replenish its resources after such an unprecedented relief package. The FCPA historically has generated significant revenue for the U.S. Government, and all criminal fines, civil penalties and disgorged profits resulting from FCPA violations go directly into the U.S. Treasury. When the COVID-19 crisis curve drops in the U.S., the DOJ, SEC, and federal prosecutors could turn to the FCPA to assist the U.S. Government in bouncing back from the financial impact of the pandemic.

Finally, the current administration and others have been critical of China’s response to the COVID-19 crisis; Secretary of State Mike Pompeo, for example, remarked in a March 5, 2020 press conference that “there was information [from China] that could have been made available more quickly and data that could have been provided and shared among health professionals across the world.” Further, on March 12, 2020, Chinese Foreign Ministry spokesman Zhao Lijian suggested, via Twitter, that the U.S. has not been transparent and that the U.S. Army may have brought the epidemic to Wuhan, China. In the wake of a potential diplomatic fallout between the U.S. and China, the administration may be particularly vigilant of and aggressive toward U.S.-China deals implicating the FCPA.

Potential FCPA Landmines

American companies that import goods or supplies from abroad frequently rely on customs agents and third-party brokers to assist them in maneuvering the often complex customs process. The use of such agents, however, may expose companies to FCPA compliance risks. Numerous FCPA enforcement actions brought by the DOJ and the SEC have focused on improper payments made by third-party agents to government officials to secure customs clearance or additional business.

For example, on September 26, 2019, the SEC announced that a Wisconsin-based digital and print marketing provider agreed to pay nearly $10 million to settle charges that it violated the FCPA by engaging in multiple bribery schemes in Peru and China. The SEC Order found that from 2010 to 2015 the company’s China-based subsidiary used sham sales agents to make and promise improper payments to employees of private and governmental customers to secure business. Similarly, on February 28, 2020, an American communication technology provider settled FCPA charges with the SEC and DOJ for $8.8 million for using resellers and distributors in China to bribe government officials.

As companies face intense pressure to quickly obtain goods and clear them through the customs process to mitigate the healthcare and economic consequences posed by COVID-19, the risk of FCPA violations runs high. For example, a customs official could refuse to allow the export of PPE without a bribe, and a company employee may be desperate enough to decide that the payment is worth making to preserve his or her employment at a time when company revenues are declining, non-performing employees are subject to lay-offs and furloughs, and sales expectations and revenues remain high. Further, a company venturing into uncharted terrain by seeking to purchase high-demand and scarce products abroad to compensate for losses in traditional lines of business might face increased risks of bribery and corruption primarily due to inexperience. Indeed, the pressure to maintain business or get back to “business as usual” may lead some employees to get dangerously close to or even cross ethical boundaries by committing bribery or other similar misconduct.

Best Practices

Companies seeking to procure goods and supplies abroad during the COVID-19 pandemic should consider the following best practices to avoid falling out of compliance with the FCPA:

Maintain a Strong Compliance Presence

Company management should reinforce and reiterate the company’s commitment to its anti-corruption and anti-fraud compliance programs. Many companies are taking proactive steps to ensure the safety and well-being of their employees, cope with new “Work From Home” policies, and brace for the financial impact of the pandemic. While a heightened focus on these critical areas right now is understandable, it is important now more than ever for companies and their compliance officers to remind employees, especially those responsible for facilitating the acquisition and importation of goods and supplies from abroad, of the company’s commitment to ethical business practices.

Emphasize Reporting Procedures for Suspected FCPA Violations

Company management should conduct anti-corruption training for employees to ensure they are capable of recognizing unethical and potentially illegal conduct, and their responsibilities for reporting it according to company policies and procedures. Compliance departments should test their reporting procedures to ensure employees are at ease in reporting any suspected FCPA violations through multiple avenues, and compliance officers should similarly test their ability to respond appropriately to reasonable suspicions of illegal activity.

Increase Screenings and Transaction Review

Finally, company management should consider increasing due diligence efforts and taking a “deeper dive” when it comes to interacting with new suppliers, agents, and distributors. For example, companies should pay particular attention to whether the individual being reviewed is related to any public officials in their country of residence, has a history of employment or business dealings with the government, and whether they previously have been the subject of any corruption complaints, investigations or negative news events. Further, companies that have instituted quantity, financial, or country of origin thresholds for reviews of transactions, expenses, and other aspects of company business for corruption risk, should consider adjusting such thresholds to include a broader and more conservative review process, at least until the COVID-19 pandemic and related equipment and supply demands substantially decrease.

Like all Blogs, this one is for information purposes only. It is not legal advice and does not form an attorney client relationship. As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules in this area. This Blog does not reflect an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This Blog does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay, and other issues.

ARTICLE BY Scott F. Roybal and Laura A. Alexander of Sheppard, Mullin, Richter & Hampton LLP.

For more on COVID-19 & Global Trade, see the National Law Review Coronavirus News section.

White Collar Enforcement and New Trump Administration: Your Top Ten Questions Answered

Enforcement activity under the Obama administration often made headlines for the eye-popping level of fines, with the Foreign Corrupt Practices Act (FCPA), Anti-Money Laundering (AML) regulations, and economic sanctions maintained by the Office of Foreign Assets Control (OFAC) leading the way. The U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the U.S. Securities and Exchange Commission (SEC) devoted substantial resources to criminal enforcement of these regulations, including through their application to non-U.S. companies operating outside the United States.

To avoid becoming enmeshed in this vigorous enforcement environment, most multinational companies have implemented enhanced regulatory risk management and compliance programs. Under a new Clinton administration, the continuation of the enforcement environment likely would have been a given, but that assumption ended when President Trump secured the 270^th electoral vote. So with a new administration coming to town, a number of questions arise in the white collar world, including:

What is the future of white collar enforcement over the next four years?
Will the aggressive enforcement activity under the Obama administration continue or even grow?
Will the U.S. government continue to emphasize enforcement of activities abroad, including against non-U.S. companies and for conduct occurring outside the United States?
Or will the new administration mark a change in the enforcement priorities of the U.S. government?

To help deal with the open questions regarding enforcement activity in the Trump Administration, this client alert presents the “top ten” questions every company potentially subject to U.S. jurisdiction should be thinking about. Previously issued client alerts discussed the future of national security (CFIUS) reviews,¹NAFTA,²U.S. Customs,³and international trade litigation⁴(antidumping and countervailing duty measures and so forth) under the Trump administration; future client alerts will deal comprehensively with all international trade and regulatory areas where significant change could occur under the new administration.

The Top Ten White Collar Enforcement Questions Answered (or, Will the New Administration Enforce with Force?)

1. What has President Trump promised?

Although President Trump has generally assailed government activity that stands in the way of the operation of business (including with regard to the FCPA, as discussed below), there is little to indicate President Trump’s views on white collar law enforcement. Nonetheless, there are numerous reasons to believe the Trump administration will continue to aggressively enforce what are commonly known as white collar crimes. The trend has been to enforce these crimes more aggressively under both Republican (George W. Bush) and Democratic (Obama) administrations. There is now an institutional apparatus to handle white collar enforcement, including dedicated FBI investigation resources, the creation of avenues to share information with foreign governments on white collar matters, established procedures to handle the large amount of data often generated by these cases, and increased hiring to support white collar enforcement (both through the addition of attorneys and the assignment of additional FBI agents) at the DOJ and dedicated personnel at other agencies (such as the SEC) that investigate these matters. And the regulatory agencies have established conduits to share information and coordinate potentially criminal matters.

The results show up in the numbers: enforcement of the FCPA has resulted in the collection of $4 billion in penalties over the course of the Obama administration, and OFAC/AML enforcement is well over $10 billion. This vast apparatus to handle white collar matters is not going away.

2. What impact would the appointment of Senator Sessions as attorney general have on white collar enforcement?

The DOJ is much more than a top-down organization that precisely mirrors changes in administration and the views of the current attorney general. Only a few persons are politically appointed; most of the DOJ consists of career prosecutors and agents. Thus, there is a certain institutional inertia that transcends changes at the political level. The long-term trend of increasing enforcement activity has been fostered and implemented as much at the lower level as it has been a top-down initiative, and it has institutional reasons to continue.

Nonetheless, the attorney general exercises a great deal of discretion regarding what cases are brought, where the DOJ focuses its enforcement attention, how the laws are interpreted, and how they are settled. With Senator Sessions surviving a hard-fought confirmation process to become Attorney General, the high degree of attention currently being paid to white collar matters likely will continue. Senator Sessions has nearly two decades of experience as a prosecutor in Alabama, both on the federal level (as an assistant U.S. attorney and then the U.S attorney for the Southern District of Alabama for 14 years) and state level (Alabama attorney general for two years). In his role as a federal prosecutor, Senator Sessions prosecuted savings and loan fraud, which was a major enforcement area during Mr. Sessions’ time as a federal prosecutor. In a 2002 Judiciary Committee hearing, Senator Sessions stated his view that vigorous enforcement of the savings and loan fraud cases during his time as a prosecutor led to “a lot better behavior in banking today” because, in his view, “[h]arsh sentencing does deter.”^[5]

These statements show an appreciation for the deterrent value of prosecuting white collar crime and a willingness to use prosecutions to send a message of compliance. Companies and corporate executives should not expect any lessening of the enforcement attention applied by the U.S. government under a prospective Attorney General Sessions.

Additional support for the continuation of the aggressive enforcement of white collar crimes is provided by the nomination of U.S. attorney Rod Rosenstein as the deputy attorney general (the second-highest position in the DOJ). Mr. Rosenstein is the longest-serving U.S. attorney. Appointing the only holdover U.S. attorney from the George W. Bush administration. As the person responsible for the day-to-day operation of the 113,000 employee DOJ shows support for continuity at the DOJ, both in terms of its operations and its enforcement priorities, especially since the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives will report directly to him.

3. What are the likely areas where we would see enforcement attention in a Sessions-led DOJ?

Predicting enforcement activity can be difficult, because events can have a large say in how the DOJ operates. When Attorney General Ashcroft was appointed in the George W. Bush administration, he came into an administration that was believed to have a pro-business tilt. There was little expectation that white collar enforcement activity would become a priority. But financial scandals and revelations of bribery led to a large ramp-up of government enforcement activity, culminating in the investigation of Siemens and the assessment of a record FCPA penalty. FCPA enforcement has been strong ever since.

Against this backdrop, we predict the following areas will see significant enforcement activity over the next four years:

FCPA. President Trump has expressed skepticism regarding the FCPA and international antibribery enforcement, such as in a 2012 interview with CNBC, where President Trump stated that “this country is absolutely crazy” to prosecute alleged FCPA violations in places where corruption is common because it puts U.S. business at a “huge disadvantage.” President Trump concluded that the FCPA is a “horrible law and it should be changed.”⁶

Despite these criticisms of the FCPA, it is unlikely that strong enforcement of the FCPA is going to go away. Senator Sessions has shown general support for the value of antibribery laws, having co-sponsored the Public Corruption Prosecution Improvements Act, which would have revised U.S. law to expand prohibitions against bribery, theft of public money, and other government-related public corruption. By all reports, there is a strong pipeline of FCPA investigations at the DOJ and the SEC, and the Trump administration is unlikely to court the bad publicity that would occur if these investigations were quashed or the level of penalties were suddenly to fall. Other countries (often at the urging of the United States) have also drafted new anticorruption laws and stepped up their enforcement of their laws, making anticorruption enforcement more of a worldwide movement. To the extent that the public skepticism of President Trump regarding the FCPA will be realized, it is more likely to take the form of congressional amendments to the FCPA, such as the inclusion of an affirmative defense based on the existence of an effective compliance program. (Predictions regarding FCPA enforcement will be covered in a future client alert.)
Export Controls. One of the hallmarks of the Trump campaign rhetoric was an emphasis on enhancing U.S. national security interests. Although export controls were not mentioned specifically, both the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) are specifically intended to implement national security concerns and have seen significant enforcement activity in recent years. These are goals likely to be supported by Senator Sessions, who in 2003 joined with other senators to support a plan to strengthen export controls on products with military uses.⁷It would not be difficult to accomplish a similar result by enforcing the existing export controls in a strong fashion, leading to the prospect of increasingly stringent enforcement activity in the export controls area. (Predictions regarding export controls enforcement will be covered in a future client alert.)

Of particular note, Senator Sessions argued that administration of the dual-use controls (i.e., commercial or dual-use products with potential military uses) should not be overseen by the Department of Commerce because there supposedly is “an inherent conflict of interest in resting the protection of our national security in the hands of a department that is charged with the promotion of U.S. business interests.”⁸With the Department of Commerce overseeing the export controls that apply most broadly (the EAR), including the civil (but not the criminal) enforcement of the EAR, Senator Sessions may emphasize the area of criminal enforcement of the export control regulations, in part to combat this perceived conflict in overseeing the most common export control regulations.
Economic Sanctions. Economic sanctions enforcement (along with AML) showed the strongest increase under the Obama administration, with the U.S. government using aggressive theories of jurisdiction as a means of asserting the extra-territorial application of the economic sanctions administered by OFAC. Neither trend is likely to change in the Trump administration. Senator Sessions introduced the Iran Sanctions Loophole Elimination Act, which would have imposed sanctions on any foreign bank that knowingly engaged in certain transactions with the Central Bank of Iran or any entity blacklisted within the shipping, shipbuilding, port operation, or energy sectors.⁹ Senator Sessions also was in favor of a “Sense of Congress” motion stating that negotiations with Iran would be more likely to succeed if the president were granted the explicit authority to impose new sanctions on Iran. Indeed, Republicans in general have been skeptical of any easing of the economic sanctions against bad actors, opposing efforts to ease the Iranian or Cuban sanctions. This general sympathy towards the robust use of economic sanctions likely will translate to a willingness to enforce the existing laws strongly, including against non-U.S. companies that have engaged in activity with some connection to the United States (such as the use of the U.S. financial system or the conduct of transactions in U.S. dollars). (Other anticipated developments with regard to economic sanctions will be explored in a future “top ten” questions article on the topic.)
Anti-Money Laundering. AML enforcement is likely to remain a priority, as it also is viewed as having terrorism and national security implications. Senator Sessions co-sponsored the Combating Money Laundering and Terrorist Financing Act of 2004, which would have combated money laundering by expanding RICO to cover funds related to illegal activities (embezzlement and fraud in the purchase of securities, illegal money transmission businesses, and so forth). Although the statute was not enacted, it indicates an approval of the aggressive use of the AML laws, a mindset favoring strong AML enforcement.
Cybersecurity. President Trump’s transition website states a plan for the Trump administration to “order an immediate review of all U.S. cyber defenses and vulnerabilities, including critical infrastructure, by a cyber review team of individuals from the military, law enforcement, and the private sector.”¹⁰ President Trump also has indicated he will instruct the DOJ to “create Joint Task Forces throughout the U.S. to coordinate Federal, State, and local law enforcement response to cyber threats.”¹¹ Senator Sessions, in turn, supported the Cybersecurity Information Sharing Act of 2015, which would have enabled enhanced sharing of cyber threat information between government and private companies. Based on these positions, increased enforcement attention regarding cybersecurity breaches, and prosecution of same, appears likely. (Further information regarding cybersecurity under the new administration will be covered in a separate “top ten” questions article.)
Financial Fraud. Senator Sessions co-sponsored the SAFE Markets Act in 2009, which authorized the FBI to hire an additional 500 agents to investigate criminal misconduct that relates to U.S. financial markets, as well as an additional 50 assistant United States attorneys.¹² Although the legislation was not enacted, it does indicate support for the aggressive use of enforcement resources in this area.
Health Care Fraud. Beyond stating that repealing the Affordable Care Act (Obamacare) would be a priority,¹³ and stating his general view that the federal government has a lot of “waste,” President Trump did not specifically focus on the issue of health care fraud. Nonetheless, the health care fraud provisions of the Affordable Care Act have a strong chance of being preserved, as it is unlikely that the Trump administration or Congress will want to be perceived as being soft on fraud. While the prioritization of other enforcement areas, such as national security, might divert resources from the issue of health care fraud, we expect that significant resources will continue to be devoted to this area.

4. Will there likely be changes in how the DOJ determines what cases to bring, how they are run, and what evidence is gathered?

Ever since the indictment of Arthur Anderson resulted in the demise of the firm, the perception has been that the DOJ weighs the “collateral consequences” of any indictment. In a 2012 speech, the head of the DOJ’s criminal division, Lanny Breuer, stated that the “collateral consequences of an indictment,” such as potential losses for corporate shareholders, jobs, and the potential to destroy a company factor into decisions by the DOJ in the Obama administration to bring charges.¹⁴

This view could well change under a Senator Sessions-led DOJ. In 2010, Senator Sessions questioned whether the DOJ should consider the collateral consequences of a criminal conviction for a corporation, stating that “I was taught if they violated a law, you charge them. If they didn’t violate the law, you don’t charge them.”¹⁵ Also, with regard to the DOJ’s investigation into BP over the Deepwater Horizon oil spill, he stated that BP “should be held liable for their responsibilities to the extent of their existence.”¹⁶ Both of these statements indicate that Senator Sessions might bring a more law-and-order view of enforcement to the DOJ, with enforcement activity being based solely upon consideration of whether a legal violation has occurred.

With regard to the way in which cases are prosecuted once the DOJ determines to go forward, Senator Sessions supports the aggressive use of electronic surveillance methods in criminal investigations, which could lead to a rolling back of certain electronic surveillance restrictions put in place by the Obama administration, such as the limitations on the bulk gathering of telephone records.

Another change could be to the contentious issue of when the DOJ can pressure companies and people to waive the attorney-client privilege and the attorney work product doctrines. The current approach is that the DOJ can request a waiver, and can consider whether the privileges were waived as an affirmative factor, but cannot punish a company or individual for not waiving privilege. But during a 2015 Senate Judiciary Committee hearing, Senator Sessions argued against this approach, noting that prosecutors regularly pressure street criminals to waive constitutional rights using threats of tougher penalties. Senator Sessions argued that the Justice Department should be able to use similar leverage against corporations, seeking to have them waive privilege in return for more lenient treatment.

5. Will there be changes in how cases are settled?

Potentially yes. The use of Deferred Prosecution Agreements (DPAs) and Non-Prosecution Agreements (NPAs) has sharply increased under the Obama administration. DPAs and NPAs are agreements not to prosecute, with the DOJ (and other agencies, such as the SEC) agreeing to settle the cases based upon a recitation of the facts and enumerated conditions of settlement, generally including the payment of a penalty. Although the DOJ seldom used NPAs and DPAs as recently as 2003, the Obama administration has used them to settle a large proportion of its investigation. This is based upon the view, summarized by Assistant Attorney General Lanny Breuer, that DPAs and NPAs are a “powerful tool” because, “in many ways, a DPA has the same punitive, deterrent, and rehabilitative effect as a guilty plea.”¹⁷

Senator Sessions has raised concerns about resolving investigations in this fashion. Senator Sessions once stated that the use of NPAs and DPAs “undermine the rule of law by depriving the [DOJ’s] legal arguments of meaningful testing in a judicial forum.”¹⁸ While this statement does indicate a skepticism regarding the use of DPAs and NPAs, it remains to be seen whether a different view would prevail if Senator Sessions transitions to attorney general. Our view is that any attorney general overseeing a criminal enforcement division with a large case load and limited resources will always be looking for expeditious ways to bring investigations to a close, including through the use of NPAs and DPAs.

6. What about the False Claims Act (FCA)? Will it continue to show increasing use?

We expect the FCA will continue to be an important area of DOJ attention. The FCA provides a mechanism whereby individuals can file lawsuits regarding claims that persons and companies have defrauded governmental programs. Since the law includes a qui tam provision that allows persons who are not affiliated with the government (relators) to bring cases on behalf of the U.S. government, and to receive a portion of any recovered damages, activity under the FCA largely is driven by private actors bringing cases, with the DOJ becoming involved thereafter. The financial incentives for relators to file such cases are not going away.

One development that could have an impact is the manner in which the Affordable Care Act is amended/repealed, as that act contained amendments to the FCA that enhanced the ability of certain individuals to qualify as relators. The Supreme Court also has shown interest in this area, making the appointment of a new Supreme Court justice to replace Justice Scalia potentially important.

7. Will the recent trend in focusing on individuals continue? What about the Yates memo?

The Yates Memorandum (formally known as the Individual Accountability for Corporate Wrongdoing memorandum¹⁹is the latest of a series of pronouncements regarding the increasing focus of the DOJ on individual liability for corporate crimes. Under the Yates memo approach, corporations cannot qualify for any cooperation credit unless they “provide to the Department all relevant facts relating to the individuals responsible for the misconduct.”²⁰ The Yates memo also has other requirements regarding individuals, including announcing a reluctance to release individuals from liability. All information regarding individuals can then be viewed by the DOJ to determine whether it should focus enforcement attention on individual employees. This focus on individuals both deals with some criticisms of the DOJ for not prosecuting individuals regarding the sub-prime mortgage crisis, and also is consistent with the view stated by Assistant Attorney General Breuer that “the strongest deterrent against corporate crime is the prospect of prison time for individual employees.”²¹

Senator Sessions is likely to continue this focus on individuals. At a 2002 Judiciary Committee hearing regarding white collar crime, Senator Sessions stated his view that prosecution of individuals is essential for deterrence of criminal activity. As he stated: “I am going to tell you there is a lot better behavior in banking today because people went to jail over those cases in the past. They lost everything they had, their families were embarrassed, and a lot of people started checking to make sure they were doing their banking correctly.”²² Along these lines, in hearings involving white collar issues, Senator Sessions has stated that in cases of serious violations of law, “the crooks in the corporation [should] be sent to jail” and that sentences for white-collar violators “should not be a lot different than [for] somebody who robs a bank.”²³ This endorsement of individual responsibility for corporate wrong-doing is consistent with the goals of the Yates memorandum — a point made by Sally Yates herself, who recently stated that “[h]olding individuals accountable for corporate wrongdoing isn’t ideological; it’s good law enforcement.”²⁴

8. Will recent efforts to incentivize whistleblowers continue?

The U.S. government has put in place incentives to report wrongdoing, including in the high-profile area of the FCPA (where the SEC maintains a whistleblower program for publicly traded companies). Senator Sessions appears to approve of such efforts, having stated that “whistleblowers can be a critical part of discovering frauds that may be of a massive nature,” making whistleblower programs “a legitimate part of our enforcement effort.”²⁵ This mindset may lead to support for enhanced whistleblower programs, especially when considered alongside evidence that such programs as the one implemented at the SEC have been successful. (Further information regarding the potential repeal of the Dodd-Frank Act, and its impact on the whistleblower program, will be covered in a future client alert.)

9. What about the international application of U.S. law?

Across a variety of enforcement contexts, the U.S. government has used aggressive theories of agency, tangential contact with the territorial United States (such as the sending of a single email from within the United States), or the unplanned/unknown use of the U.S. financial system as a means of asserting jurisdiction. As a result, the U.S. government, in some ways, has become the world’s white collar policeman. For example, 7 of the 10 largest FCPA actions have targeted non-U.S. companies for activities largely taking place outside of the United States, and many of the recent large OFAC settlements have targeted non-U.S. financial institutions (particularly in Europe).

It is unlikely the U.S. government will cease using such theories, because they are such a useful way of asserting jurisdiction. Nonetheless, as more individuals are charged (see above), the number of cases going to court is likely to rise, because individuals facing jail time are far more likely to fight enforcement activity than are corporations, which often want to settle investigations and move on. These cases likely will target jurisdiction based upon attenuated contact with the United States, the U.S. economy, or the U.S. financial system. Thus, judicial review may lead to restrictions on the use of such jurisdictional theories. Otherwise, we do not see a likely decline in the use of these aggressive jurisdictional theories.

10. Everything discussed above sounds scary. What can I do to mitigate the risk of heightened enforcement activity?

Regardless of the enforcement priorities of the new administration, the days where enforcement actions could be considered a “cost of doing business” are long gone. Large penalties and the poor publicity that accompanies high-profile compliance lapses have ensured that regulatory risk management is going to remain a corporate priority for the foreseeable future.

Although the topic of regulatory risk management is complicated, and best performed based upon an evaluation of the individual risk profile, scope of business operations, and compliance culture of an individual company, the following are the six areas where corporations (especially multinational corporations) should focus their risk-management attention:

Risk Assessment. Regulatory risk management is, at its heart, an exercise in risk identification and management, through the implementation of effective compliance measures, backed up by appropriate internal controls and training. It necessarily follows that the starting point is the conduct of a risk assessment that evaluates the regulatory risk points unique to each organization. A risk assessment should be performed or updated at least every two years and after every significant change in the risk profile of the firm, such as after a significant acquisition, expansion to a new country, change in key laws, or other major change in the business/regulatory profile of the organization.²⁶
Compliance Program. At most organizations, there are anywhere between 18 and 22 key regulatory areas that are the subject of detailed compliance policies.²⁷ These policies should dovetail with the company’s code of conduct/code of ethics and internal controls/standard operating procedures. The focus should be on making the policies effective, including through making them short and easy to understand and tailoring them to the organization’s unique risk and business profile.
Compliance Infrastructure. There can be a major difference between how compliance is envisioned at headquarters and how it actually is implemented in the field. Often this is because compliance is viewed as a top-down affair, with insufficient attention being given to the administration of the compliance program, especially at multinational corporations. Organizations, accordingly, should take the time to evaluate their compliance infrastructure, including by determining whether the organization has sufficient compliance liaisons at different divisions and regions/countries, whether there is an adequate two-way flow of information regarding compliance topics and compliance lapses, and whether the compliance infrastructure is supported by adequate resources.
Internal Controls. Internal controls, along with written compliance policies and training, are one of the three legs of a properly functioning compliance program, yet they are often neglected. But the compliance mission is not satisfied by the mere promulgations of even a well-written compliance policy. Organizations should look for areas where compliance response can be institutionalized and governed by internal controls that systematize the compliance function. Examples of common internal controls include Gifts, Meals, Entertainment & Travel policies for antibribery compliance, screening protocols for economic sanctions, and know-your-customer controls for AML.
Training. Effective compliance requires frequent training, yet too many organizations provide training at orientation and leave it at that. The U.S. government, however, has communicated that it does not give any mitigating credit in an enforcement action to “paper programs” that look good as written, but are not consistently applied or understood at the organization. Training should be tailored to the audience, being more in-depth for personnel at highest risk and made relevant to the audience through the provision of actual examples likely to be encountered. Detailed logs of training, including when it occurred, who was trained, and the actual training materials relied upon and used should be kept for a minimum of five years past the time when the personnel remain at the company.
Audits. Finally, the days when an organization could launch a compliance program and then let it run on auto-pilot are long gone (if they ever existed). Effective compliance, at least in high-risk areas, requires that organizations continually assess the state of compliance efforts, benchmark them against industry competitors, and update the compliance program and internal controls based on the gathered learning. Companies accordingly should establish a multi-year compliance audit schedule in which key compliance measures are evaluated and processes established to enhance compliance efforts. The areas/divisions/regions to be examined should be established using risk-based principles.

NOTE: The international climate for U.S.-based multinational companies and non-U.S. based companies that sell into the United States has never been more uncertain. We will be issuing a series of “ten question” alerts related to the transition to a new administration, including with regard to such international regulatory topics as the future of NAFTA (already issued),²⁸ International Trade (antidumping, countervailing duty, and safeguard) actions (already issued),²⁹ Customs & Border Protection (already issued),³⁰ CFIUS reviews³¹ (already issued), economic sanctions and export controls, the FCPA, and cybersecurity.

ARTICLE BY Scott L. Fredericksen & Gregory Husisian of Foley & Lardner LLP

^{1 See Gregory Husisian, “CFIUS and the New Trump Administration: Your Top Ten Questions Answered”}

^{2 See Gregory Husisian and Robert Huey, “NAFTA and the New Trump Administration: Your Top Ten Questions Answered”}

^{3 See Gregory Husisian and Robert Huey, “U.S. Customs and the New Trump Administration: Your Top Ten Questions Answered”}

^{4 See Gregory Husisian and Robert Huey, “International Trade Litigation and the New Trump Administration: Your Top Ten Questions Answered”}

^{5 Penalties for White Collar Crime: Hearing Before the Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 107th Cong. 176 (2002) (Statement of the Hon. Jeff Sessions).}

^{6 See FCPA Professor, “The FCPA is a Horrible Law and It Should be Changed,” http://fcpaprofessor.com/donald-trump-the-fcpa-is-a-horrible-law-and-it-should-be-changed/.}

^{7 See Ken Guggenheim, “Republican Senators Push for Tighter Export Controls,” Associated Press (Mar. 10, 2003); David Clarke, “Hill Republicans Want Bush Help on Export Controls,” CQ Homeland Security – Technology (Mar. 11, 2003).}

^{8 See Ken Guggenhein, “GOP Senators Seek Tighter Export Controls,” http://www.myplainview.com/news/article/GOP-Senators-Seek-Tighter-Export-Controls-8861452.php.}

^{9 See https://www.congress.gov/bill/113th-congress/senate-bill/892/cosponsors.}

^{10 See https://www.donaldjtrump.com/policies/cyber-security.}

^{11 See Donald J. Trump’s Vision – Cybersecurity, available at https://www.donaldjtrump.com/policies/cyber-security.}

^{12 See https://www.govtrack.us/congress/bills/111/s331.}

^{13 See “Healthcare Reform to Make America Great Again,” available at https://www.donaldjtrump.com/positions/healthcare-reform.}

^{14 See “Assistant Attorney General Lanny A. Breuer Speaks at the New York City Bar Association” (Sept. 13, 2012), available at https://www.justice.gov/opa/speech/assistant-attorney-general-lanny-breuer-speaks-new-york-city-bar-association.}

^{15 Nomination of James Michael Cole, Nominee To Be Deputy Attorney General, U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 99 (2010) (Statement of Senator Sessions).}

^{16 Nomination of James Michael Cole, Nominee To Be Deputy Attorney General, U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 98 (2010) (Statement of Senator Sessions).}

^{17 See Assistant Attorney General Lanny A. Breuer Speaks at the New York City Bar Ass’n (Sept. 13, 2012), available at www.justice.gov/opa.speech/assistant-attorney-general-lanny-breuer-speaks-new-york-city-bar-association.}

^{18 Protecting American Taxpayers: Significant Accomplishments and Ongoing Challenges in the Fight Against Fraud: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 54 (2011) (Questions Posed by Senator Jeff Sessions).}

^{19 See https://www.justice.gov/dag/file/769036/download.}

^{20 See Sally Quillian Yates, “Individual Accountability for Corporate Wrongdoing” (Sept. 9, 2015), available at https://www.justice.gov/dag/file/769036/download.}

^{21 See Assistant Attorney General Lanny A. Breuer Speaks at the New York City Bar Ass’n (Sept. 13, 2012), available at www.justice.gov/opa.speech/assistant-attorney-general-lanny-breuer-speaks-new-york-city-bar-association.}

^{22 Penalties for White Collar Crime: Hearing Before the Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 107th Cong. 176 (2002) (Statement of Hon. Jeff Sessions).}

^{23 Penalties for White Collar Crime: Hearing Before the Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 107th Cong. 177 (2002) (Statement of Hon. Jeff Sessions).}

^{24 See C. Ryan Barber, “Yates ‘Optimistic’ Trump Won’t Trash Namesake Enforcement Memo” (New York L.J.) (Dec. 1, 2016) (quoting Deputy Attorney General Sally Yates).}

^{25 Effective Strategies for Preventing Health Care Fraud: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 3 (2009) (Statement of Hon. Jeff Sessions).}

^{26 A risk-assessment questionnaire that provides a good starting point for assessing regulatory risk at most multinational corporations}

^{27 A starting list of typical core policies that should be considered by most organizations is available by sending an email to ghusisian@foley.com or by contacting him at 202.945.6149.}

^{28 See “NAFTA and the New Trump Administration: Your Top Ten Questions Answered“}

^{29 See Gregory Husisian and Robert Huey, “International Trade Litigation and the New Trump Administration: Your Top Ten Questions Answered“}

^{30 See Gregory Husisian and Robert Huey, “U.S. Customs and the New Trump Administration: Your Top Ten Questions Answered”}

^{31 See Gregory Husisian, “CFIUS and the New Trump Administration: Your Top Ten Questions Answered”}

Improved US – Cuba Relations Create Potential FCPA Risks for US Companies Looking to do Business There

The normalization of relations between the United States and Cuba offers potential lucrative business opportunities for companies that are prepared to meet Cuba’s unique corruption risks. On December 17, 2014, President Barack Obama and Cuban President Raul Castro announced the restoration of full diplomatic relations between the United States and Cuba; an act which President Obama stated was aimed at ending “an outdated approach that for decades has failed to advance our interests” and that would instead begin to “normalize relations between our two countries.” In furtherance of that goal, on January 16, 2015, the U.S. Government eased travel restrictions between the U.S. and Cuba and, perhaps more importantly, reduced certain obstacles that prevented American companies from doing business on the island. For example, U.S. businesses will be allowed to provide financing to Cuban small businesses and sell communications devices, software, and hardware services among other things. Indeed, American companies in the aviation, telecommunications, or financial industries stand to gain a substantial foothold in a burgeoning new – and potentially lucrative – Cuban market.

Before diving in head first, however, American companies must recognize and prepare for the significant Foreign Corrupt Practices Act (“FCPA”) risks inherent in doing business in Cuba. But first, a quick refresher on the FCPA. Generally speaking, the FCPA prohibits bribing foreign officials for the purpose of obtaining or retaining business. The term “foreign official” is broadly defined and includes, among other things: (i) officers or employees of a foreign government or any department, agency, or instrumentality thereof; or (ii) anyone acting in an official capacity for or on behalf of said foreign government or any department, agency, or instrumentality thereof.

Doing business in Cuba presents a host of unique FCPA risks, three of which are particularly worth highlighting. First, while the Cuban government has taken steps to permit its citizens to open small businesses, the vast majority of Cuba’s economy remains government-owned and controlled. Former economist for the International Monetary Fund, Ernesto Hernandez-Cata, estimated that the Cuban government, directly and through state-owned businesses, accounts for more than 75% of Cuba’s total economic activity. Essentially, the state is involved in virtually all of the island’s major businesses, including services typically run by the private sector in the U.S. In other words, American companies will almost certainly deal with foreign officials when doing business in Cuba.

Second, Cuban government officials are notoriously undercompensated. On average, government officials earn between $20 and $40 per month while, in some cases, being tasked with administering Cuba’s multi-million dollar business ventures. Unsurprisingly, low wages and extensive state involvement in business matters have incentivized some Cuban officials to solicit bribes (and, occasionally, have tempted foreign companies to offer them). For example, in September 2014, Cy Tokmakjian, Claudio Vetere, and Marco Puche, executives at Tokmakjian Group, a Concord, Ontario, Canada-based company, were convicted of using bribery and other means to avoid paying taxes. They received sentences of 15, 12, and 8 years respectively as part of President Raul Castro’s crack down on graft and other forms of corruption. Tokmakjian, Vetere, and Puche may not be subject to the FCPA, but similar payments by American companies in Cuba would likely expose the companies and employees to FCPA liability.

Third, and finally, Cuba suffers from a widespread lack of transparency. The 2015 Transparency International Corruption Perceptions Index ranked Cuba 56^th out of 168 countries surveyed, tied with Ghana. American companies may find themselves in the dark with respect to Cuban regulations and procurement practices. As a result, companies may not be aware of inconsistent and/or improper application of Cuban regulations. Worse still, American companies may be unaware of the true purposes for certain payments. For example, a company may be informed that a particular payment is required to obtain a specific license but find out that the money was directed to a foreign official.

Note that the FCPA does have a knowledge requirement; however, knowledge may be demonstrated by establishing awareness of a high probability of impropriety, unless the person actually believed that there was nothing improper in that instance. See 15 U.S.C. § 78dd-1(f)(2). The “high probability” standard was intended to ensure that the FCPA’s “knowledge” requirement included instances of “conscious disregard” and “willful blindness.” H.R. Rep. No. 100-576, at 919 (1988) (citing United States v. Bright, 517 F.2d 584 (2d Cir. 1975)); see also United States v. Kozeny, No. 09-cr-4704, 2011 WL 6184494 (2d Cir. Dec. 14, 2011). Furthermore, the vast majority of FCPA cases settle before trial which means that there is little case law that speaks specifically to the FCPA’s scienter requirement. As a result, the DOJ and SEC have broad discretion to attempt to settle cases based on facts that may be out of tune with a strict interpretation of the FCPA’s scienter requirement.

At a minimum, reducing FCPA risks in any foreign country requires that companies take a few basic, but important, steps: conduct a risk assessment of the country, the industry, and the market; use the assessment to prepare a potent anti-bribery policy aimed at both prevention and remediation; implement the policy and disseminate it to all employees; adequately train employees and company agents; and modify the policy when necessary to ensure adequate protection in a changing market.

More specifically, doing business in Cuba – a market with which few American companies are deeply familiar – requires a thorough risk assessment. The quality of the analysis can mean the difference between a deficient anti-bribery policy and one that adequately shields the company from risk exposure. Accordingly, American companies should seek the advice of counsel before, during, and after the assessment. Counsel with experience in dealing with FCPA issues will be well-equipped to make sure the risk analysis is efficient, comprehensive, and targeted. This information will prove invaluable when designing an anti-bribery policy. Furthermore, experienced counsel can assist in implementing the policy, modifying the policy to ensure ongoing effectiveness, and representing the company should any FCPA-related issues arise.

Article By Philip J. Bezanson, Glen A. Kopp & Jeffery B. Vaden of Bracewell LLP

DOJ Issues New FCPA Guidance and Launches Self-Reporting Pilot Program

The US Department of Justice has announced the creation of a one-year pilot program intended to encourage companies to self-report bribery violations and provide extensive cooperation in exchange for reduced penalties, ranging from reductions in fines to declinations.

On April 5, the Fraud Section of the US Department of Justice (DOJ) issued its “Foreign Corrupt Practices Act Enforcement Plan and Guidance” (Guidance) outlining the following “three steps in [its] enhanced FCPA enforcement strategy”:

The intensification of its investigative and prosecutorial efforts by substantially increasing its FCPA law enforcement resources.
The strengthening of its coordination with foreign law enforcement.
Its implementation of an “FCPA enforcement pilot program” to encourage voluntary disclosure, cooperation, and remediation.^[1]

While the first two steps have been championed in prior DOJ press releases and speeches, the third step—the creation of the FCPA enforcement pilot program—is an important development that has the potential to change the voluntarily disclosure calculus in connection with FCPA matters.

The Guidance applies “to organizations that voluntarily self-disclose or cooperate in FCPA matters during the pilot period, even if the pilot thereafter expires.”^[2]

Intensification of DOJ’s Investigative and Prosecutorial Efforts

The Fraud Section plans to more than double the size of its FCPA Unit by “adding 10 more prosecutors to its ranks”^[3]—a staffing goal that was previously announced by Assistant Attorney General for the Criminal Division Leslie Caldwell at an FCPA conference in November 2015.^[4] The Guidance also cites the FBI’s establishment of “three new squads of special agents devoted to FCPA investigations and prosecutions,” a hiring initiative that was announced approximately a year ago.

Strengthening of DOJ’s Coordination with Foreign Law Enforcement

The second part of the Guidance builds on previous statements by senior DOJ leaders that they “are greatly aided by our foreign partners”^[5] and “it is safe to say [in 2013] that we are cooperating with foreign law enforcement on foreign bribery cases more closely today than at any time in history.”^[6]

FCPA Enforcement Pilot Program—Eligibility and Potential Benefits

The most important part of the Guidance is the Fraud Section’s announcement of a one-year “FCPA enforcement pilot program,” which provides for “mitigation credit” that takes into consideration three essential factors: (1) voluntary disclosure, (2) full cooperation, and (3) remediation. In cases in which the above three factors are met but a criminal resolution is nonetheless warranted, “mitigation credit” can include “up to a 50% reduction off the bottom end of the Sentencing Guidelines fine range, if a fine is sought” and the avoidance of a third-party compliance monitor.”^[7] Moreover, the Guidance states that, in appropriate cases, where the above factors are fully satisfied, DOJ “will consider a declination of prosecution.”^[8]

Voluntary Self-Disclosure

A company must voluntarily disclose an FCPA violation to the Fraud Section in order to be eligible for the full mitigation credit. As a preliminary matter, the disclosure must be truly voluntary—a disclosure that the “company is required to make, by law, agreement, or contract” would not constitute voluntary self-disclosure for purposes of this pilot.^[9] Second, the disclosure must occur “prior to an imminent threat of disclosure or government investigation” and be “within a reasonably prompt time after becoming aware of the offense,” with the burden on the discloser to demonstrate timeliness.^[10] Finally, the disclosure must include “all relevant facts known to [the company], including all relevant facts about the individuals involved in any FCPA violation.”^[11]

DOJ’s voluntary disclosure requirement follows a recent announcement by the US Securities and Exchange Commission (SEC) that companies subject to FCPA enforcement actions are required to self-report their potential misconduct to be eligible for deferred prosecution agreements and non-prosecution agreements. Full Cooperation

The Guidance sets forth nearly a dozen requirements for companies seeking cooperation credit under the pilot program.^[12] Those requirements can be distilled into the following four categories:

Disclosure of Relevant Facts: Companies are expected to disclose “all facts relevant to the wrongdoing at issue” on a timely basis, including “all facts related to involvement in the criminal activity by the corporation’s officers, employees, or agents” and “all facts relevant to potential criminal conduct by all third-part[ies].” Disclosure is expected to be “proactive” rather than “reactive,” and facts relevant to the investigation should be voluntarily provided “even when [companies are] not specifically asked to do so.” In addition, disclosures are expected to include “all relevant facts gathered during a company’s independent investigation.”
Preservation and Disclosure of Documents: All relevant documents—as well as “information related to their provenance”—are expected to be collected, preserved, and disclosed. This expectation extends to “overseas documents” and important details about those records such as their location and the individuals who discovered them. In some cases, prosecutors may insist that companies provide translations of foreign-language documents. Finally, it is expected that companies will assist with the “third-party production of documents . . . from foreign jurisdictions.”
Making Individuals Available for Interviews: Upon request, companies are expected to “mak[e] available for [DOJ] interviews those company officers and employees who possess relevant information,” including—where appropriate and possible—individuals located overseas, as well as those who no longer work for the company.
Conducting Transparent and Coordinated Internal Investigations: Companies are expected to provide timely updates about their internal investigations and, where requested, ensure that such investigations do not conflict with those being conducted by the government.

The Guidance notes that “cooperation comes in many forms,” and that the Fraud Section “does not expect a small company to conduct as expansive an investigation in as short a period of time as a Fortune 100 company.”^[13]

Remediation

The final requirement is that of “timely and appropriate remediation,” and the following items generally will be required in order for companies to receive remediation credit:

Implementation of an Effective Compliance Program: While the criteria depend on the size and resources of the organization, the following factors are normally considered:
- Whether the company has established a “culture of compliance”
- Whether the company has sufficient compliance resources
- The quality and experience of the compliance personnel
- The independence of the compliance function
- Whether the company’s compliance program has performed an effective risk assessment and tailored the compliance program based on that assessment
- How a company’s compliance personnel are compensated and promoted
- Auditing of the program to assure its effectiveness
- The reporting structure of compliance personnel within the company
Discipline of Culpable Employees: It is expected not only that companies discipline culpable employees, but that they have systems that provide for the possibility of disciplining others with oversight of the responsible individuals.
Acceptance of Responsibility and Implementation of Reforms: Companies are expected to recognize the seriousness of the misconduct, accept responsibility for it, and implement reforms to identify and reduce the risk of similar violations.^[14]

Credit

Where the above conditions are met but a criminal resolution is warranted, the Fraud Section’s FCPA Unit (1) may accord up to a 50% reduction off the “bottom end” of the Sentencing Guidelines fine range, if a fine is sought; and (2) generally should not require appointment of a monitor if a company has, at the time of resolution, implemented an effective compliance program.

Furthermore, where the same conditions are met, the Fraud Section’s FCPA Unit will consider a declination of prosecution. In doing so, prosecutors must balance the importance of encouraging disclosure against the seriousness of the offense. In assessing the seriousness of the offense, prosecutors are to consider the involvement by executive management in the FCPA misconduct, the size of the ill-gotten gains in relation to the overall revenue of the company, a history of noncompliance by the company, and any prior resolutions by the company with DOJ within the past five years.

Finally, if the company cooperates and remediates, but has not voluntarily disclosed, the Fraud Section’s FCPA Unit may provide partial mitigation credit, but will agree to no more than a 25% reduction off the bottom of the Sentencing Guidelines fine range.^[15]

Implications

This Guidance comes after what has been a growing perception that voluntary disclosures have slowed significantly due to a lack of transparency, consistency, and clarity as to what the benefits are, if any, to self-disclosing. Whether the pilot program succeeds in encouraging self-disclosures will likely depend on the perception of companies and defense counsel of the fairness and openness of the application of the criteria in the Guidance.

^{[1] US Dep’t of Justice, Memorandum from Andrew Weissmann titled “The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance” (Apr. 5, 2016) (Guidance)}

^{[2] Guidance at 3.}

^{[3] Id. at 1.}

^{[4] Stephen Dockery, “US Justice Dept. Boosting Foreign Corruption Staff,” Wall Street Journal (Nov. 17, 2015)}

^{[5] US Dep’t of Justice, “Assistant Attorney General Leslie R. Caldwell Speaks at American Conference Institute’s 31st International Conference on the Foreign Corrupt Practices Act” (Nov. 19, 2014)}

^{[6] See id.; see also US Dep’t of Justice, “Acting Assistant Attorney General Mythili Raman Delivers Keynote Address at the Global Anti-Corruption Congress” (June 17, 2013)}

^{[7] Guidance at 8.}

^{[8] Id. at 9.}

^{[9] Id. at 4.}

^{[10] Id.}

^{[11] Id.}

^{[12] Id. at 5-6.}

^{[13] Id. at 6.}

^{[14] Id. at 7-8.}

^{[15] Id. at 8-9.}

Goodyear Pays for Sins of Subsidiaries in $16 Million Settlement

Following recent trends, the U.S. Securities and Exchange Commission brought an administrative proceeding against a U.S. issuer for the corrupt activities of its foreign subsidiaries. Earlier this week, Goodyear Tire & Rubber Company agreed to pay the SEC over $16 million to settle charges that it violated the accounting provisions of theForeign Corrupt Practices Act by failing to prevent or detect over $3 million in bribes paid by its Angolan and Kenyan subsidiaries. Goodyear also must report its compliance remediation efforts to the SEC annually for the next three years.

The SEC’s Charges

According to the SEC’s cease and desist order, between 2007 and 2011, Goodyear’s downstream subsidiaries in Kenya andAngola bribed employees of both private and government-owned companies to obtain business. The subsidiaries also bribed police, tax authorities and other local officials, though the SEC’s order did not allege the purposes of those payments. The bribes “were falsely recorded as legitimate business expenses in the books and records of the subsidiaries, which were consolidated into Goodyear’s books and records.”

The SEC found that “Goodyear did not prevent or detect these improper payments because it failed to implement adequate FCPA compliance controls at its subsidiaries” and, for the Kenyan subsidiary, “because it failed to conduct adequate [pre-acquisition] due diligence.” Goodyear was not alleged to have any involvement with or knowledge of its subsidiaries’ illicit conduct. Nonetheless, comments by Scott Friestad, Associate Director of the SEC’s Enforcement Division, displayed the SEC’s willingness to hold parent companies responsible for failing to adequately supervise their subsidiaries: “Public companies must keep accurate accounting records, and Goodyear’s lax compliance controls enabled a routine of corrupt payments by African subsidiaries that were hidden in their books.”

Lessons Learned

Benefits of self-disclosure, cooperation, and remediation: Although Goodyear had to disgorge over $14 million in profits from its Kenyan and Angolan operations, and over $2 million in prejudgment interest, it avoided a civil penalty. This relatively favorable outcome likely is due to Goodyear’s timely self-disclosure to the SEC after receiving information about the bribes (through internal whistleblower mechanisms), its substantial cooperation with the SEC during the course of the investigation, and its extensive remediation efforts. Those efforts included divesting one subsidiary and preparing to divest the other, disciplining employees, and enhancing its anti-corruption compliance program. The settlement bolsters repeated assertions by law enforcement and regulatory officials that companies who self-disclose and cooperate will be rewarded with leniency.
Buyers (and parents) beware: Parent companies may be on the hook for their subsidiaries’ misconduct, even when the parent company does not participate in or know about the illicit activities. Indeed, the SEC was careful to note that the Kenyan subsidiary’s corrupt activities may have begun prior to Goodyear’s acquisition, and could have been identified through adequate pre-acquisition due diligence. Pre- and even post-acquisition anti-corruption due diligence has become mandatory for companies that seek to acquire entities in high-risk foreign jurisdictions. And after the transaction is consummated, parents who are subject to the FCPA’s accounting provisions must ensure that their subsidiaries maintain robust internal controls and accurate books and records, regardless of whether they too are issuers.
FCPA charges may include commercial bribery: According to the SEC’s order, both of Goodyear’s subsidiaries paid bribes not only to employees of government-owned entities, but also to employees of private companies. This settlement should serve as a reminder that although the FCPA’s anti-bribery provisions only extend to the bribery of foreign government officials, the accounting provisions may be used to prosecute commercial bribery.
Expect more FCPA enforcement actions in administrative proceedings: Companies facing a civil FCPA enforcement action by the SEC must remain cognizant of the likelihood that the proceedings will play out on the administrative stage. Defendants in administrative forums face truncated deadlines, an absence of judicial scrutiny and limited appellate rights, and cannot avail themselves of the protections in the Federal Rules of Evidence and Civil Procedure. The SEC likely will continue to seek home-court advantage, whenever possible.

ARTICLE BY

Sigal P. Mandelker

Rochelle H Emert

Phillip J. Caraballo-Garrison

Proskauer Rose LLP

A Primer on the Foreign Corrupt Practices Act

The conduct of your employees can implicate statutes other than the familiar federal and state fair employment laws, and an unwary employer can find itself subject to stiff fines and unwelcomed publicity by ignoring its compliance obligations under those statutes. For example, does your company conduct business abroad, and, if so, are you familiar with the Foreign Corrupt Practices Act (“FCPA”)? If you are an entity traded on an American exchange, incorporated under the laws of the United States, or acting while in the territory of the United States, or you are an individual who is an officer, director, employee, agent, or shareholder of such a company, are a citizen of the United States, or are a person acting in the United States, you are subject to liability under the FCPA. The FCPA prohibits giving or attempting to give anything of value to a foreign official in order to influence any act or decision of the foreign official in his or her official capacity or to secure any other improper advantage in order to obtain or retain business. The phrase “anything of value” has a very broad definition and includes even charitable contributions or gifts to family members of foreign officials, and bribes come in all shapes and sizes, often making them difficult to detect.

In recent years, the Securities and Exchange Commission(“SEC”) and Department of Justice (“DOJ”) have increased their focus on FCPA compliance, including securing a record $772 million fine against one company last year. Those agencies have also been increasingly targeting (or, at least, stated their intentions to increasingly target) individual actors, in addition to the increased enforcement against companies. This means that you and your employees are at risk under the FCPA in the event of a suspected or actual violation.

A robust FCPA compliance program can be a strong defense or prevention against FCPA issues. Compliance programs should be individually and narrowly developed and tailored to a company’s needs and risks. While there is no guaranteed checklist for an effective compliance program given the unique nature of companies, some hallmarks of an effective FCPA compliance program are:

A commitment from senior management and a clearly articulated policy against corruption;
Well-established and -disseminated codes of conduct and compliance policies and procedures;
Sufficient oversight, autonomy, authority, and resources for the program;
Risk assessment, resource allocation, and due diligence proportional to the type of activity or business opportunity, the particular country and industry sector, potential business partners, level and amount of government involvement, governing regulation and oversight of the activity, and exposure to customs and immigration in conducting the business;
Training and continuing advice throughout the company that clearly communicates, in the local language where appropriate, the policies and procedures, case studies, and practical advice for real-life scenarios individuals will encounter in their specific roles;
Disciplinary measures that are well publicized and clearly applicable to all levels of the organization;
Effective due diligence, review, and monitoring of transactions and dealings with third parties and vendors, as they are among the most common means through which violations take place;
Mechanisms that facilitate and encourage confidential reporting, such as hotlines or ombudspersons, and that properly document and evaluate actual and possible FCPA issues; and
Periodic testing, review, audit, and analysis of the effectiveness of the program to ensure it is the best program in place for your organization.

However, as employers with strong anti-discrimination and anti-harassment policies know, even the best written and most well-intentioned policies cannot guarantee insulation from liability or from investigation by the government of suspected/potential violations. In the event a company discovers a violation by its employees, the DOJ and SEC encourage self-reporting and cooperation by entities and individuals, and cooperation can facilitate and expedite any potential investigation by government authorities and possibly result in non-prosecution agreements and reduced penalties.

Conversely, failing to disclose known violations can result in harsher penalties, thus providing incentive to identify and self-report violations. For its part, the government has created incentives to increase the chances that if a company will not report violations, its employees will. The Dodd-Frank Act established a whistleblower program that rewards whistleblowers between 10-30% of total recovery when the recovery exceeds $1 million, giving financial incentive for individual employees to come forward with reports of FCPA violations. Another important consideration when developing FCPA compliance measures and programs is to ensure that the compliance program is independent of and given due weight in relation to business decisions. All too often, FCPA issues are not timely discovered when compliance programs are not properly implemented because of a perceived business cost, and companies and employees face crippling fines and punishment as a result.

In any event, companies that are navigating these waters would be wise to consult with experienced legal counsel familiar with the FCPA and the government agencies charged with its enforcement, both when developing any compliance program and when dealing with a suspected violation.

ARTICLE BY

Radha Kulkarni

Gonzalez Saggio & Harlan LLP

Think Tanks Ask Supreme Court to Clarify Definition of “Foreign Official” in FCPA (Foreign Corrupt Practices Act)

Two think tanks, the Washington Legal Foundation and the Independence Institute, have filed anamicus brief in the Supreme Court on behalf of petitioners Joel Esquenazi and Carlos Rodriguez, who were recently convicted of violating the Foreign Corrupt Practices Act (FCPA). The amiciseek clarity of the definition of “foreign official” in the FCPA. The FCPA prohibits certain persons or entities, including US businesses, from paying a “foreign official” for the purpose of obtaining or retaining business. The FCPA defines “foreign official” to include “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.”

Esquenazi and Rodriguez were executives of Terra Telecommunications Corp., a Florida company that purchased phone time from foreign vendors and resold the time to US customers. Terra conducted business with Haiti-owned vendor Telecommunications D’Haiti S.A. (Haiti Teleco). Prosecutors argued that Esquenazi and Rodriguez made payments to Haiti Teleco officers to obtain lower rates. To determine whether Haiti Teleco was an “instrumentality” under the FCPA, the trial court instructed the jury to consider whether the company “provided services to the citizens and inhabitants of Haiti,” and whether it was majority owned by the Haitian government. Defendants were convicted, and Esquenazi was sentenced to 15 years’ imprisonment and Rodriguez received seven years’ imprisonment. The US Court of Appeals for the Eleventh Circuit affirmed, finding that an “instrumentality” is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” and setting forth a list of factors.

Amici contend that the business community needs concrete guidance in this undeveloped area. They argue that the Eleventh Circuit’s definition is overly broad because (1) Haiti Teleco was never designated a government entity; (2) Haiti Teleco issues common stock, and the government was not an initial stockholder; and (3) Haiti Teleco, as a telephone service provider, does not perform a traditional government function.

Brief for Esquenazi and Rodriguez as Amici Curiae Supporting Petitioners, Esquenazi, et al. v. U.S., Sup. Ct. No. 14-189 (Aug. 14, 2014).

ARTICLE BY

Bruce M. Sabados

Margaret J. McQuade

Katten Muchin Rosenman LLP

Register for ABA's National Institute on International Regulation and Compliance: FCPA, Economic Sanctions & Export Control

For the first time ever, the American Bar Association is putting together an inaugural comprehensive program on the FCPA, economic sanctions, and export control. Led by the Criminal Justice Section and its Global Anti-Corruption Committee, and co-sponsored by the Business Law and International Law Sections, the ABA National Institute on International Regulation and Compliance is a three-day program (October 1-3) in Washington, DC tackling some of the most pressing challenges in cross-border regulations affecting in-house and outside business and transactional lawyers, litigators, investigators, compliance professionals, and forensic examiners, as well as their organizations.

Attracting many of the country’s leading thought leaders and practitioners in their respective fields – and drawing from the membership of all three Sections – the Institute is anchored by an exceptionally strong faculty with deep knowledge of, and experience in, their respective topics. In addition, the Institute benefits from the participation of a cross-section of government and former government lawyers, who are important contributors to the Institute’s program-content dialogue. So come be a part of an important, cutting-edge conference with many benefits, including:

Fair and balanced program content targeted at both experienced and less experienced professionals in different legal fields
Satisfying your state bar legal ethics requirement
Increased networking opportunities

SEC Settles Civil Foreign Corrupt Practices Act (FCPA) Action Against Two Former Oil Services Executives

On the eve of a trial which was scheduled to begin this week, the Securities and Exchange Commission settled a civil Foreign Corrupt Practices Act (FCPA) case it brought against two former oil services executives. The case was an outgrowth of anindustry-wide investigation the SEC had initially commenced beginning in 2010.

In February 2012, the SEC filed a complaint against Mark A. Jackson, who was the former CEO and CFO of Noble Corporation, and James J. Ruehlen, former Director and Division Manager of Noble’s Nigerian subsidiary, alleging that they authorized the payment of bribes to customs officials to process false paperwork that purported to show the export and re-import of oil rigs, which was necessary under the requirements of Nigerian law. In fact, the rigs had never been moved. The SEC alleged that the scheme was part of a design to save Noble from losing business and incurring costs associated with exporting rigs from Nigeria and re-importing them under new permits. The complaint asserted violations of the anti-bribery and books and records provisions of the FCPA. The complaint also detailed the fact that Jackson had refused to cooperate during Noble’s internal investigation of the matter and had asserted his Fifth Amendment rights and refused to testify during the SEC investigation.

The settlement with Jackson and Ruehlen was the last in a lengthy saga of FCPA actions against Noble and its former employees. Noble was initially charged with FCPA violations in a civil action in 2010. The company settled, agreeing to pay more than $8 million in fees. The SEC filed charges against Jackson and Ruehlen in 2012 following the corporate settlement and also filed charges against Thomas F. O’Rourke, the former controller and head of internal audit at Noble. O’Rourke quickly settled and agreed to pay a penalty.

Despite pursuing the action for more than two years and alleging serious wrongdoing by the defendants, including responsibility for an extensive bribery scheme, the SEC agreed to settle with Jackson and Ruehlen just two days before their trial was to commence with an injunction against violating the books and records provision of the FCPA. Although Noble had settled its own case for a hefty penalty, neither Jackson nor Ruehlen were required to pay a fine, concede a violation of the bribery provisions of the FCPA nor agree to restrictions on employment.

SEC v. Jackson et al., No. 4:12-c-00563 (S.D. Tex. Jul. 7, 2014).

Article By:

Emily Stern

Ashley H. Jones

Of:

Katten Muchin Rosenman LLP

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Anticipated FCPA Enforcement in the Wake of the COVID-19 Pandemic

Potential FCPA Landmines

Best Practices

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The Top Ten White Collar Enforcement Questions Answered (or, Will the New Administration Enforce with Force?)

1. What has President Trump promised?

2. What impact would the appointment of Senator Sessions as attorney general have on white collar enforcement?

3. What are the likely areas where we would see enforcement attention in a Sessions-led DOJ?

4. Will there likely be changes in how the DOJ determines what cases to bring, how they are run, and what evidence is gathered?

5. Will there be changes in how cases are settled?

6. What about the False Claims Act (FCA)? Will it continue to show increasing use?

7. Will the recent trend in focusing on individuals continue? What about the Yates memo?

8. Will recent efforts to incentivize whistleblowers continue?

9. What about the international application of U.S. law?

10. Everything discussed above sounds scary. What can I do to mitigate the risk of heightened enforcement activity?

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The US Department of Justice has announced the creation of a one-year pilot program intended to encourage companies to self-report bribery violations and provide extensive cooperation in exchange for reduced penalties, ranging from reductions in fines to declinations.

Intensification of DOJ’s Investigative and Prosecutorial Efforts

Strengthening of DOJ’s Coordination with Foreign Law Enforcement

FCPA Enforcement Pilot Program—Eligibility and Potential Benefits

Voluntary Self-Disclosure

Remediation

Credit

Implications

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The SEC’s Charges

Lessons Learned

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