Last week, Attorney General Pamela Bondi issued 14 memoranda outlining new enforcement priorities at the US Department of Justice (DOJ). Notably, DOJ resources will shift away from the Foreign Corrupt Practices Act (FCPA) and the Foreign Agents Registration Act (FARA) and toward prosecuting human trafficking and smuggling, immigration enforcement, and pursuing total elimination of cartels and transnational criminal organizations.
Here are three actions corporations should consider as we enter a new era of corruption prosecutions.
- Maintain your compliance program.
- It takes a long time to build an ethical culture and a short time to lose it.
- Although there may be fewer corporate investigations under the Trump Administration, the statute of limitations for FCPA criminal violations is still five years and for violations of FCPA accounting provisions it is six years. Conspiracy charges allow the government to prosecute even older conduct, up to five years after the last overt act of the conspiracy.
- Relaxing ethical standards now could result in significant problems for your business later.
- Evaluate whether you have appropriate compliance policies and procedures implemented to actively prevent and detect human trafficking activities within your operations.
- Review whether human trafficking and smuggling compliance is addressed in your recruitment and employment process and in your supply chain.
- This is especially important for organizations with a global workforce who may use temporary workers or employees in countries where appropriate labor and employment protocols and laws are not followed.
- You should implement policies, conduct awareness trainings, have oversight of your suppliers and vendors, and conduct due diligence on your recruiting agencies.
- Ensure your internal reporting mechanism is effective.
- You want employees to raise concerns with you first, not regulators.
- Make sure your workforce knows about your hotline and that you have an appropriate procedure for investigating credible complaints.
It is difficult to know how these changes will impact the FCPA unit’s enforcement activities. Still, the US Securities and Exchange Commission has civil FCPA enforcement authority over US issuers and foreign companies that list on US exchanges, and to date, it has not introduced any changes to its FCPA enforcement plan.
Even if there are fewer FCPA investigations in the coming years, it is important not to violate the law or relax your standards for corporate integrity. Your employees should understand that while enforcement priorities have changed, the law has not. Evaluate and remediate any gaps in your compliance program now.
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