As many of my Facebook followers know, I am huge fan of breakfast tacos, particularly on any day ending in the letter ‘Y’. So, it was not too much of a surprise to find me at my favorite breakfast taco place last Saturday, Moderno’s. The Saturday AM manager, whom I know by name (and vice versa), said when I placed the usual Saturday order of bacon, egg and cheese tacos, responded with “Same as it ever was” the iconic line from the Talking Heads song Once in a Lifetime. I told him that he just gave me the title of my Monday blog.
Over the weekend, we had the first 100 days of the Trump administration. To commemorate this constructed time for review of any new administration I gathered the Everything Compliance podcast panel of Mike Volkov, Jay Rosen, Matt Kelly and Jonathan Armstrong for a recording which will post this coming Thursday, further Rosen and I hit some of our highlights in the 50th anniversary podcast of This Week in FCPA. In today’s blog, I wanted to consider where Foreign Corrupt Practices Act (FCPA) enforcement is and has been during the first 100 days of the current administration. About the clearest expression I can bring to you is that FCPA enforcement has been and continues to be same as it ever was.
I found the remarks of Department of Justice (DOJ) Acting Principal Assistant Attorney General Trevor McFadden around FCPA enforcement, made recently in Washington DC at the Anti-Corruption, Export Controls & Sanctions (ACES) 10th Compliance Summit (the “DC speech”), reassuring when he began the final section of his remarks by reiterating the DOJ’s commitment to the concepts articulated in the Yates Memo. The DOJ wants to hold individuals accountable for corporate misconduct, as it is individuals not corporations who engage in actions. He also reiterated support for the concepts behind the FCPA Pilot Program stating, “the department regularly takes into consideration voluntary self-disclosures, cooperation and remedial efforts when making charging decisions involving business organizations.”
He next turned to the speed and length of FCPA investigations. McFadden said the DOJ is committed to moving forward “expeditiously” to investigate and bring investigations to a conclusion. However, to do so, companies must be prepared to meet this need for speed with prompt and thorough investigations. It also means there must be extensive cooperation, including companies working with the DOJ, to “prioritize internal investigations and to respond to Fraud Section requests promptly to ensure there are no unnecessary delays.”
McFadden believes this new, speedier resolution process will “be good for cooperating companies. No executive wants to deal with a lingering government investigation or the associated costs and distraction from the company’s mission.” Both the Fraud Section leadership and McFadden are focused on wrapping up old investigations, with no unnecessary delays. McFadden concluded this section by stating “My intent is for our FCPA investigations to be measured in months, not years.”
Jay Rosen, in his blog post “It Was the Best of Times, It was the Worst of Times, Or Ignorance is Strength”, wrote about the speech by Attorney General (AG) Jeff Sessions at the Ethics & Compliance Initiative (ECI) Annual Conference. In rare remarks by the AG on the FCPA specifically and in addressing the compliance community more generally, Sessions said the following:
“First, I want to thank you for working so hard to ensure that your companies and clients do the right thing. The Department of Justice investigates and prosecutes people and companies that break the law – including laws that criminalize corporate misconduct. That is an incredibly important responsibility, and the men and women of our department take it seriously. Our work ensures that law-breaking is punished, and helps deter future bad behavior. I think I have the experience to properly evaluate a case. We will enforce the law and not back down to powerful forces – but we will be fair – equal justice to poor and rich.”
“But each case we bring may be a sign that something has already gone wrong. That is what your work seeks to prevent, by building strong cultures of compliance within your companies to deter illegal and unethical conduct. We applaud those efforts. Our department would much rather have people and companies obey the law and do the right thing, so we don’t have to see them in court. Your good work makes our jobs easier, and it makes your companies and our country better. So far, so good. The E&C community is recognized for doing their job of helping companies follow their moral compass.”
Matt Kelly, after listening to the same remarks, was somewhat less sanguine in his blog post entitled “Sessions Dodges, Weaves, Promises on FCPA”. No doubt writing while wearing his skeptical journalist hat, he said, “Sessions spoke to an audience of several hundred at the Ethics & Compliance Initiative’s annual conference in Washington. If we take his words at face value, they’re reassuring to compliance professionals in several ways. Yes, he said, enforcement of the FCPA will continue. No, he said, the Justice Department won’t view every incident of an employee’s misconduct as a big heap of criminal liability for the company itself. Then again, Sessions also danced around the question of whether zealous U.S. enforcement of anti-corruption laws puts U.S. companies at a competitive disadvantage on the global stage. At one point in his speech, he praised anti-corruption enforcement as a vehicle to reward the many good companies out there that don’t bribe their way to success.”
Rosen also detailed the FCPA enforcement actions which have occurred under the new administration and found continuity from prior administrations, even if there was currently a seeming paucity in enforcement actions. Yet, for Rosen, the most important area was around the move for greater corporate compliance. He noted, “From global food and consumer goods providers to healthcare and culture companies, there seems to be an overwhelming response to tying organizations’ business culture and values with operational controls and concurrently educating employees by giving them the tools they need to “do the right thing” … we can take solace in the fact that many companies who take E&C seriously continue to talk the talk and walk the walk.”
I found that McFadden’s remarks will warm the hearts of compliance practitioners as they made clear the DOJ is committed to the international fight against bribery and corruption. It will work with its investigative and prosecutorial counterparts across the globe to not only share information but aggressively prosecute corruption scofflaws. The remarks of both McFadden and AG Sessions stressed the continuity of the DOJ to bring more and greater resources to bear across the globe to fight bribery and corruption.
For those who thought that Trump would do away with the FCPA or his minions would work to weaken it, McFadden’s and AG Sessions speeches should be of comfort that the DOJ understands not only the value of the FCPA to the US as a country but also the US business community. Striving for a level playing field in the business world will always work to the advantage of US companies. Indeed, more anti-corruption enforcement across the globe should also benefit US companies by even greater leveling of the playing field. McFadden’s remarks make clear that the FCPA is a positive for businesses and its continued enforcement will remain a top priority in the current DOJ.
As for the first 100 day of the new administration in FCPA it was and will continue to be same as it ever was.
For a YouTube clip music video of the Talking Heads’ Once in a Lifetime, click here.
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© Thomas R. Fox, 2017