FCPA Enforcement – Watching the Enforcement River Flow
People disagreeing on all just about everything, yeah
Makes you stop and all wonder why
Why only yesterday I saw somebody on the street
Who just couldn’t help but cry
Oh, this ol’ river keeps on rollin’, though
No matter what gets in the way and which way the wind does blow
And as long as it does I’ll just sit here
And watch the river flow
Watching the River Flow – Bob Dylan
Bob Dylan’s songs always resonate with me. I carried his music with me wherever I went. His song, “Watching the River Flow,” reminds me of all the FCPA Paparazzi who lament the “slow down” in FCPA enforcement in 2015.
Just like the river flowing, we can sit here and suggest that there have been meaningful changes in FCPA enforcement. In fact, nothing is changing. The FCPA enforcement river is continuing to flow.
FCPA investigations are complex, time-intensive and far-reaching. They take time and resources. DOJ and the SEC have been criticized lately for failing to move their cases in a timely fashion. Criminal Division AAG Leslie Caldwell has made it a priority to clean up the older pending investigations.
Frankly, the primary culprit of lengthy investigations has been the SEC. DOJ has tried to move cases and resolve them. The SEC on several occasions continues to investigate cases even after DOJ has closed its investigation. The SEC, among the FCPA bar, has a reputation of stringing cases out and failing to resolve cases quickly.
FCPA investigative resources have continued to grow – additional FBI agents have been assigned to FCPA, Anti-Corruption Squads. DOJ’s FCPA Unit is well-staffed, and will continue to grow. US Attorneys’ Offices around the country are building expertise with line AUSAs working on FCPA investigations in their district.
As I always say, the best predictor of government enforcement activity is the amount of resources assigned to the task. FCPA enforcement resources have grown and will continue to increase. In order to justify the resource claims, DOJ and the FBI agents have to produce cases.
FCPA Paparazzi like to make mountains out of molehills, and the lack of DOJ enforcement activity through 2015 is another classic molehill. DOJ does not end investigations with a standard timeframe. Some go on longer than others, depending on staffing, complexity and a variety of other factors. Another issue that influences case resolution is assignment of staff to trials.
DOJ has two important trials coming up this year – Joseph Sigelman and Lawrence Hoskins. Prosecutors assigned to the case also assist on corporate investigations.
The flow of FCPA cases continues at a reasonable pace. The data surrounding the number of new investigations disclosed has been consistent over the last few years. Nothing is slowing down and nothing will slow down. FCPA investigations are here to stay.
We may see a number of case resolutions of older investigations in response to AAG Caldwell’s push. It is a good idea and will help to respond to critics of lengthy investigations hanging over corporate heads.
DOJ’s enforcement model depends on outside counsel investigations and corroborating DOJ reviews and investigations. Unfortunately, they take time. Global evidence gathering is difficult and presents a number of challenges. Critics have to recognize that an FCPA investigation is not like a run-of-the-mill bank robbery or discrete incident. DOJ is filled with hard-working dedicated prosecutors. They know what they are doing.
The FCPA Paparazzi needs to calm down and consider the reality – FCPA enforcement is continuing at a reasonable pace.