Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime last week (Monaco Speech). Her remarks were noted by many commentators, including on two Compliance Into the Weeds podcasts where Matt Kelly and myself took two deep dives into her speech our podcast. Her remarks reframed a discussion about this Department of Justice’s (DOJ) priorities on white collar criminal enforcement, including under the Foreign Corrupt Practices (FCPA). Her remarks should be studied by every compliance professional as they portend a very large change in the way the DOJ and potentially other agencies enforce the FCPA. This has significant implications for every Chief Compliance Officer (CCO), compliance professional and corporate compliance programs.
Today, I am going to take up some questions that came up for me based upon her remarks. As compliance practitioners know, the first DAG in the Trump Administration announced a major change in FCPA enforcement in November 2017. It was called it the FCPA Corporate Enforcement Policy and it was incorporated into the United States Attorneys’ Manual. Although it was incorporated into the Manual, it was essentially a rejection of the Yates Memo and incorporating the FCPA Pilot Program from 2016 into a more formal structure.
The FCPA Corporate Enforcement Policy set a presumption of a declination for a company that met four requirements. One, voluntary self-disclosure, including disclosure of all relevant facts known to it at the time of the disclosure, including as to any individuals substantially involved in or responsible for the misconduct at issue. Two, timely and appropriate remediation. Third, full cooperation with the DOJ in the investigation. Fourth, no aggravating circumstances which could include “involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”
My first series of questions relate to the Rosenstein policy. What is now required for a ‘presumption of a declination”? Will a company have to self-disclose not simply those individuals substantially involved or all employees, no matter how high or low in the employee chain? Must those disclosures be at the time of self-disclosure or as facts are developed in an investigation? Recall the Yates Memo mandated that if a company wanted any credit it had to disclose all employees involved in the misconduct. [So much so that the word ‘any’ was in bold, italics and underscored.] Will the DOJ revert back to that standard?
What of Deferred and Non-Deferred Prosecution Agreements (DPAs and NPAs)? Has the DOJ heard the criticism of these settlement mechanisms over the years? Matt Kelly and I catalogued them in the second Compliance into the Weeds podcast on Monaco’s speech. Or has the DOJ decided that there is some type of material defect in these tools which makes any settlement with a DPA or NPA simply ‘a cost of doing business’? Monaco raised these issues in the context of FCPA recidivist or those companies which have a broader history of corporate recalcitrant in complying with laws in general; i.e., tax, environmental, employment and every other law a corporation must deal with both in the US and internationally. Even though her remarks were directed to recidivists and other bad corporate actors, it would not be too far a stretch to see if the DOJ reconsidered such penalties for all those companies which find themselves in a FCPA imbroglio.
What might some changes look like? A couple of recent examples come from areas outside the FCPA context. Last week, the Federal Trade Commission (FTC) issued a new directive that any company which has one anti-competition violation under its belt will have to return to the FTC for pre-approval of any acquisition. That can be quite a business slow down if you are in a dynamic industry or profession. The other example comes from the world of US banking where the Federal Reserve put a growth cap on Wells Fargo for its behaviors. Once again something like that can be a very large business inhibitor.
The DOJ return to more robust monitorships could be another mechanism. While the monitors now usually concern themselves with the terms of the settlement agreement and whether the company under the settlement agreement is fulfilling its terms; the monitor could take a more active role in an organization, such as review any high-risk transaction or transaction but a certain dollar value. Such an intrusive monitorship would greatly slow down business in any organization. Yet FCPA recidivists do not seem to have gotten the message not to violate the FCPA. Indeed, even some under DPAs and NPAs are not fulfilling their agreed upon obligations. All of these factors could lead to some very different forms of settlement resolutions.
What about Monaco’s remarks around evaluation of all corporate conduct, not simply anti-bribery compliance? Her remarks bear citing in full on this point:
Going forward, prosecutors can and should consider the full range of prior misconduct, not just a narrower subset of similar misconduct — for instance, only the past FCPA investigations in an FCPA case, or only the tax offenses in a Tax Division matter. A prosecutor in the FCPA unit needs to take a department-wide view of misconduct: Has this company run afoul of the Tax Division, the Environment and Natural Resources Division, the money laundering sections, the U.S. Attorney’s Offices, and so on? He or she also needs to weigh what has happened outside the department — whether this company was prosecuted by another country or state, or whether this company has a history of running afoul of regulators. Some prior instances of misconduct may ultimately prove to have less significance, but prosecutors need to start by assuming all prior misconduct is potentially relevant.
Most compliance professionals work very diligently to create a culture around anti-corruption compliance. However now there must be compliance with a much broader set of laws; both in the US and internationally. How many compliance officers even know about these other areas? Further, if there is one resource in the organization who does keep track of such matters, it is usually in the legal department, who are loathe to share that information, even within an organization. How will a compliance professional be aware and then work to ensure compliance in these other areas?
As I said in the introduction, there are lots of open questions. Tomorrow I will sum up what it all may well mean for the compliance professional.
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