Harris Beach attorney Brian Mahoney presented a national webinar on “White-Collar Crime Enforcement: Legal Trends and Developments in 2017 and Beyond,” hosted by The Knowledge Group. Brian regularly advises clients on matters related to corporate compliance and government investigations as well as federal and state regulatory actions.  His trial practice includes representing individuals, businesses and institutions in both civil and white collar criminal matters. He has tried over 75 civil and jury trials to verdict.  Key topics included: White Collar Crimes Targeted by Prosecutors; Factors Considered by Prosecutors; FCPA Enforcement Pilot Program; Status of Yates Memo. The following topline advice was covered in each of the segments.

White Collar Crimes Targeted by Prosecutors:   Prosecutors have been focusing on the following white-collar crimes, among others: (i) money laundering; (ii) health-care fraud and anti-kickback cases; (iii) securities fraud; (iv) insider trading; (v) internet fraud cases; and (vi) FCPA violations.

Factors Considered by Prosecutors: According to Section 9-28.300 of the U.S. Attorneys’ Manual, prosecutors consider the following factors, among others, when charging business organizations:

1. Nature and seriousness of the offense;
2. Pervasiveness of wrongdoing within the corporation;
3. Corporation's history of similar misconduct;
4. Corporation's willingness to cooperate in the investigation of its agents;
5. Existence and effectiveness of the corporation's pre-existing compliance program;
6. Corporation’s timely and voluntary disclosure of wrongdoing;
7. Corporation's remedial actions;
8. Collateral consequences;
9. Adequacy of remedies such as civil or regulatory enforcement actions; and
10. Adequacy of the prosecution of individuals responsible for the corporation's malfeasance.

Trends in FCPA Enforcement: In April 2016, the DOJ’s Fraud Section increased its FCPA unit by more than 50% (adding 10 more prosecutors), and the FBI established three new teams devoted to FCPA investigations and prosecutions. The DOJ also implemented an FCPA Enforcement Pilot Program, with the goal of promoting “greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self-disclose FCPA-related misconduct, fully cooperate with the Fraud Section, and, where appropriate, remediate flaws in their controls and compliance programs.” Companies who meet some or all of these criteria may qualify for a range of potential mitigation credit, including the maximum reward: declination of prosecution. In March 2017, the DOJ announced the Pilot Program would remain in place indefinitely.

Status of Yates Memo: The Yates memo was published in September 2015. Significantly, it set forth that the DOJ would prioritize prosecution of individuals in corporate misconduct investigations. In April 2017, in a speech to the “Annual Conference of Ethics and Compliance Initiative,”  U.S. Attorney General Sessions stated the DOJ “will continue to emphasize the importance of holding individuals accountable for corporate misconduct.” In summary, it appears the DOJ’s FCPA enforcement efforts (as set forth in the Pilot Program), and its focus on prosecuting individuals involved in corporate misconduct (as stated in the Yates Memo), will continue under the current Administration.

Watch Brian’s webinar