Despite a recent lull in FCPA resolutions, a top U.S. Department of Justice (DOJ) official confirms that, under the new administration, the DOJ is committed to continued aggressive enforcement of the Foreign Corrupt Practices Act (FCPA).
From January 1, 2017 to President Trump's first day in office on January 20, 2017, the DOJ and the U.S. Securities and Exchange Commission (SEC) announced the resolution of seven FCPA cases. In the three months since then, the DOJ has been silent and the SEC has only announced the filing of charges against two former executives for their conduct in a bribery scheme that violated the FCPA. Companies should not interpret the lull as an indication that the new administration will not aggressively enforce the FCPA.
At a pair of recent conferences, Acting Principal Deputy Assistant Attorney General Trevor N. McFadden of the DOJ's Criminal Division confirmed that the DOJ continues "vigorously" to enforce the FCPA. McFadden's remarks also shed some light on how the DOJ will enforce the FCPA. McFadden shared that the DOJ will continue to prioritize the prosecution of individuals, and that in making its charging decisions, the DOJ "regularly" considers voluntary self-disclosures, remedial efforts, and cooperation. Of particular note, McFadden highlighted a push to resolve investigations more quickly than they have been in the past—finishing investigations "in months, not years." According to McFadden, the DOJ is making a "concerted effort" to conduct investigations quickly and is focused on finishing old investigations. The DOJ expects cooperating companies to be on board with this push to resolve FCPA investigations quickly, by promptly answering the DOJ's requests and by prioritizing internal investigations. McFadden also touted the collaboration between DOJ and its "international partners," and noted that the DOJ seeks global resolutions where appropriate to ensure companies "are not unfairly penalized" by multiple regulators.
McFadden's remarks highlight the important role of counsel and compliance professionals in ensuring that companies have in place a robust anti-corruption policy that promotes compliance with the FCPA and other foreign and domestic anti-corruption laws, in addition to cooperating with the government during investigations. Venable is positioned to assist clients on the front end with anti-corruption compliance and on the back end in defending against government investigations.