The ACI FCPA Conference wrapped up yesterday with a "town hall" session featuring three leading enforcement officials: Gurbir Grewal, director of the SEC's Division of Enforcement; Joseph Beemsterboer, acting chief of the DOJ Fraud Section; and Patrick Killeen, chief of the FBI's International Corruption Unit.
Not surprisingly, these officials echoed many of the themes that other speakers from their agencies had touched on earlier in the conference-an ongoing commitment to aggressive FCPA enforcement, increased interagency and international coordination, high expectations for companies seeking cooperation credit, and the need for a corporate "culture of compliance."
Grewal, who stepped down as New Jersey's attorney general this past summer to join the SEC, addressed, among other things:
- His concern about declining trust in financial markets and the need to protect investors from fraudsters and kleptocrats all over the world;
- Gatekeeper accountability for auditors and lawyers as a significant enforcement priority;
- Challenges with auditing and regulating Chinese companies that issue securities, the SEC's new rules to implement the Holding Foreign Companies Accountable Act, and a recent example of SEC enforcement action against a China-based company for fraud;
- The Enforcement Division's current policy on waivers, which de-couples decisions about how to resolve an enforcement action from decisions about whether to grant a waiver for certain disqualifications that might result from the enforcement action.
- The relationship between compliance and internal controls, which, in his view, are different but don't always have a "bright line" between them.
Beemsterboer, a former healthcare fraud prosecutor, offered his take on how the Fraud Section will implement recent guidance from deputy attorney general Lisa Monaco on prosecuting corporate crime. As expected, he noted that the Fraud Section will prioritize cases against individuals but still pursue corporations where it deems appropriate. He also responded to questions about the extent to which prosecutors really will consider a company's entire criminal, civil, and regulatory enforcement history in determining a proper resolution. According to Beemsterboer, the Fraud Section will be "reasonable." He suggested that while prosecutors will look at the full picture, as a practical matter they are likely to focus on misconduct that occurred recently and/or that is similar to the misconduct at issue.
For his part, Killeen spoke about the history of the FBI's International Corruption Unit, which was founded in 2015; its close coordination with attorneys in the DOJ FCPA Unit, Money Laundering and Asset Recovery Section, and Antitrust Division; its on-the-ground partnerships with law enforcement all over the world; and its refusal to "shy away" from investigations in countries where it can be difficult to obtain evidence.
While no new policies were announced at the ACI FCPA Conference, practitioners got an opportunity to hear from a host of leading enforcement officials about the challenges they are facing and where priorities lie in the first year of a new presidential administration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.