On Day 1, the ACI FPCA Conference heard from the current chiefs of the Department of Justice (DOJ) and Securities and Exchange Commission's (SEC) Foreign Corrupt Practices Act (FCPA) Units. On Day 2, the conference heard from a handful of former DOJ and SEC FCPA Unit Chiefs, who offered reflections on the evolution of FCPA enforcement over the past 15 years. Their observations included:
- Increased international cooperation and coordination
- A greater variety of resolution mechanisms now available for corporate violations (declination, declination with disgorgement, Non-Prosecution Agreement, Deferred Prosecution Agreement, guilty plea)
- DOJ and SEC's increased expertise with corporate compliance, leading to higher expectations
- DOJ's willingness to establish corporate enforcement policies
- More bureaucracy within the DOJ's FCPA Unit as it has grown in size and adopted more policies that limit individual prosecutors' discretion
- Continued institutional reluctance from the SEC to establish generally applicable corporate enforcement policies for the FCPA
- DOJ's greater willingness to take individuals to trial in criminal cases under the FCPA, as well as anti-money laundering laws
The conference also heard on Day 2 from the current Chief of the DOJ Fraud Section's Corporate Enforcement, Compliance, and Policy Unit. This relatively new unit within the department has responsibility for "working with and advising prosecution teams on the structural, monetary, and compliance components of corporate resolutions; evaluating corporate compliance programs and determining whether an independent compliance monitor should be imposed as part of a corporate resolution; and overseeing post-resolution matters." Andrew Gentin, the Unit Chief, discussed how his team focuses not only on the design of a compliance program but also on how it is implemented and tested. He stressed that the DOJ is much more likely to require an independent compliance monitor as a part of a resolution if the company being prosecuted cannot show that it has tested the effectiveness of its program.
Stay tuned for more updates from the ACI Conference.
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