On April 19, 2017, Law Bulletin hosted its 10th annual Chicago White Collar Crime & Corporate Governance Conference at the Swissotel Chicago. Attorneys from across the legal profession, as well as former U.S. Department of Justice and Securities & Exchange Commission officials, shared insights and perspectives on this year’s topic, “Implications of a Trump Administration.” As a panelist on “The Shifting Anti-Corruption Landscape,” I spoke about my experience with anti-corruption investigations and enforcement actions. The discussion touched on some key points.
Our panel emphasized that signs point to continued enforcement of the Foreign Corrupt Practices Act in the new administration, although it is too early to predict definitively.
We agreed that key anti-corruption enforcement initiatives introduced or maintained at the U.S. Department of Justice under the previous administration are likely to continue for the foreseeable future. Two months after President Trump’s inauguration, the DOJ announced that its FCPA Enforcement Plan and Guidance pilot program would remain in place indefinitely. The pilot program provides a structure for companies to self-disclose and cooperate with the DOJ in exchange for declinations or reduced penalties. The panelists commented that in general, the calculus for companies deciding whether to disclose misconduct voluntarily has not changed.
In terms of pursuing individuals, it seems that the DOJ remains similarly unaltered. In September 2015, the DOJ issued a memorandum requiring prosecutors to consider individual accountability in connection with all corporate resolutions, and imposed an enhanced responsibility to provide information about individual misconduct to receive cooperation credit. Although former acting U.S. Attorney General Sally Quillian Yates, the author of the memorandum, was ousted by the new administration, the panelists pointed to statements by U.S. Attorney General Jeff Sessions as evidence that the DOJ will continue to pursue culpable individuals in corporate actions.
My fellow panelists also stressed that companies should not retreat on developing and enhancing their compliance programs simply because of the change in administration. The DOJ’s guidance on compliance programs, issued a few weeks after the inauguration, sets forth challenging questions that the DOJ commonly asks when evaluating a company’s compliance program. And Hui Chen, who has had a visible role in DOJ enforcement actions and settlement negotiations, currently remains in her position as the DOJ’s compliance counsel. Finally, even if the U.S. government ultimately redirects its focus from anti-corruption enforcement to different priorities, other countries have enacted new anti-corruption legislation and increased their enforcement activity in this area.