Recently, the American Conference Institute held its 40th International Conference on the FCPA. Senior DOJ enforcement officials provided insight on key developments in DOJ policies and practices such as the Department’s enhanced use of data analytics, factors considered in awarding exceptional cooperation credit, the launch of the DOJ’s new ICAB program, and heightened investments by the UK Serious Fraud Office (SFO) to combat corruption.
Data analytics
Although the use of data analytics by DOJ is not new, DOJ panelists described an emphasis on the increased use of this technology to examine trends and develop new cases, without being solely reliant on whistleblowers or self-reports from companies. Glenn Leon, Chief of the DOJ Fraud Section, touted the Department’s in-house data analytics expert, Matt Galvin, an innovator in this space when he was a chief compliance officer at a major company, and the DOJ’s enhanced ability to leverage data analytics in FCPA investigations and prosecutions. In- house corporate counsel panelists speculated that such data analytics could be used to scrutinize various categories of information, such as trends in tender awards, outlier discounts or sales margins, and other market data. For their part, DOJ panelists stressed that companies should consider DOJ’s enhanced capabilities when deciding whether to self-report misconduct.
Exceptional cooperation credit
A common theme discussed throughout the conference was examples of exceptional cooperation such as that evidenced by Albemarle, and how companies can earn additional cooperation credit – now up to 50 percent – for voluntary self-disclosures. Glenn Leon identified several specific factors, which included: (1) translating documents, if applicable, (2) making witnesses available to enforcement authorities, (3) navigating foreign privacy issues, (4) terminating responsible parties, and (5) promptly remediating. He cautioned that the Department will not hesitate to provide lesser cooperation credit when appropriate. However, because the DOJ is focused on incentivizing comprehensive and timely cooperation, it will seek to recognize significant cooperation efforts where appropriate.
The DOJ’s new ICAB program
Acting Assistant Attorney General Nicole Argentieri announced a new global anti-corruption program called the International Corporate Anti-Bribery (ICAB) Initiative. The Department will assign three experienced prosecutors with strong international relationships and extensive experience to launch the initiative. Argentieri remarked that these prosecutors will be expected to develop proactive leads and “force multiply” efforts to bring forth parallel investigations in coordination with foreign enforcement bodies, and they will likely have language fluency to assist in this coordination.
Heightened UK SFO investments to combat corruption
Vanessa Sisti, Assistant Chief of the DOJ and Prosecutorial Liaison to the UK, moderated a conversation with Sara Chouraqui, the Joint Head of Bribery, Fraud, and Corruption at the SFO. Chouraqui announced that the SFO was in the process of recruiting over 100 new prosecutors, analysts, accountants, and other employees to ramp up investigatory efforts. The SFO anticipates this hiring spree will enable the agency to expedite ongoing investigations and increase the volume of new cases it can bring.
Next steps
These discussions shed further light on DOJ’s and UK SFO’s evolving policy objectives and areas of emphasis. Companies should consider these factors – including, among other things, DOJ’s enhanced data analytics capabilities, and its evolving expectations with regard to cooperation credit – when deciding whether to self-report internal findings or proactively bolster their compliance programs.
If your organization would like to learn more about how to navigate these developments, we encourage you to reach out to one of our many experienced lawyers in your jurisdiction who can help you evaluate your options.
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