In a series of late April speeches, Jeff Sessionsand Acting Principal Deputy Assistant Attorney General Trevor McFaddenanswered questions about whether the Department of Justice would stay the course on active FCPA enforcement. Both Sessions and McFadden underscored DOJ’s continued priority on individual criminal accountability for FCPA violations, cooperation with corporations in preventing, identifying, and remediating FCPA violations, and transparency about FCPA charging decisions.
Sessions’ speech largely stuck to broad strokes, heralding that under his leadership, DOJ “will continue to strongly enforce the FCPA and other anti-corruption laws.” Session also made it known that DOJ would be guided in its prosecutorial discretion determinations by the same factors that had been salient for the prior administration: whether the company has a good corporate compliance program in place, the steps it took to cooperate with the government and self-disclose the violation, and the steps it took to remediate the violation.
McFadden’s more detailed speech emphasized two additional points. First, “compliance requires more than good intentions” and companies which operate in “high-risk environments” or expand quickly into “new markets or through acquisition of foreign companies” must ensure that their compliance programs are up to the task. Importantly, McFadden stressed that corporate compliance must be more than merely “ink on paper.” Instead, it must be part of the company’s culture itself, echoing the Fraud Section’s most recent guidance on corporate complianceprograms. Second, McFadden noted a “concerted effort” to speed up FCPA investigations so that they could be “measured in months, not years.” A quicker investigative process would facilitate charges against individuals before the limitations period had run or evidence was lost, but would also lead to a quicker resolution for the company to the concerns that invariably accompany a government investigation.
All in, these speeches broke little new ground. But for a DOJ which has spent the first few months advertising a renewed focus on violent crime and immigration, the speeches served as notice it would carry-over active FCPA enforcement from the last administration. (See also The Winds of Change They Aren’t a Blowin': DOJ Affirms Commitment to Maintain White-Collar and FCPA Enforcement and Emphasizes the Importance of Corporate Compliance, Katya Jestinand Nicholas R. Barnaby).