With the Trump administration firmly in place, there has been increased public discussion surrounding the Department of Justice (DOJ) priorities to crack down on illegal drugs, violent crime and illegal immigration. With these priorities gathering the most public attention, the DOJ appeared to shift its focus away from white collar crime enforcement, especially when compared to the increased enforcement experienced under the Obama administration. However, that likely is not the case. Recent comments by Attorney General Jeff Sessions have emphasized the continued DOJ priority to enforce laws regarding corporate misconduct. At the same time, he promised to continue holding individuals accountable for corporate misconduct and stressed the importance of companies having quality compliance programs. Enforcing white collar crime is still a priority for this administration and corporations will be expected to conduct themselves accordingly.
White Collar Crime is Still a Priority
In a recent address at the Ethics and Compliance Initiative Annual Conference on April 24, 2017, Sessions laid out the DOJ priorities under the Trump administration. While he noted the need to “turn back the recent surge in violent crime and murder” and restore a “lawful system of immigration,” he also emphasized focusing on these challenges does not mean the DOJ will reduce efforts in other areas, including white collar crime. He noted that his office will continue investigating and prosecuting corporate fraud, securities fraud and other corporate misconduct to protect American consumers and ensure “honest businesses aren’t placed at a disadvantage.” He noted, “These laws are in place for a reason. When they are broken, it has real consequences on people’s lives.”
This continued emphasis on enforcing white collar crime includes strongly enforcing the Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws. Sessions and the Trump administration view violations of the FCPA and other anti-corruption laws as harmful to American consumers and businesses because such violations “harm free competition, distort prices, and often lead to substandard products and services coming into this country.” The negative outcomes resulting from violations are directly adverse to key Trump administration goals; therefore, it should come as no surprise the DOJ will strongly enforce the FCPA and other anti-corruption laws.
The “Yates Memo” is Still in Place
While stressing that enforcing white collar crime is a still an important DOJ goal, Sessions also offered insight into how the DOJ will approach corporate misconduct. Notably, he emphasized the continued application of the “Yates Memo,” which focuses on the role of individual actors in corporate misconduct. He noted that along with investigating and holding corporations accountable for violations of corporate law, the DOJ “will continue to emphasize the importance of holding individuals accountable for corporate misconduct.” He pledged that the DOJ “will work closely with our law enforcement partners, both here and abroad, to bring these persons to justice.” Thus, not only are non-complying companies at risk when breaking the law, individuals responsible for non-compliance will continue to be investigated and prosecuted by the DOJ.
The Importance of Quality Compliance Programs
While much of his address at the conference noted the consequences of violating corporate laws, Sessions also provided insight on how corporations can limit wrongdoing and avoid indictment from the DOJ. He said that when the DOJ makes charging decisions, it will continue taking into account whether companies have “good compliance programs; whether they cooperate and self-disclose their wrongdoing; and whether they take suitable steps to remediate problems.” The DOJ has taken these factors into account for years when making charging decisions, and the U.S. Sentencing Guidelines provide for substantial sentencing reductions for corporations taking these steps. Simply having a compliance program is not enough, however. Sessions emphasized that these programs must be effective to limit wrongdoing and avoid indictment. Sessions’ comments serve as a reminder for corporations to update or activate their compliance programs.