FCPA Predictions for 2017 (Part III of III)
With the new incoming administration, everyone is busy predicting major changes in DOJ FCPA enforcement. I do not share this view. Frankly, FCPA enforcement is more bipartisan than other controversial enforcement programs (e.g. civil antitrust and merger enforcement), and DOJ’s FCPA program is very profitable.
While there may be a renewed effort by the Chamber of Commerce to raise FCPA reform again, I do not expect the Chamber to be very successful, especially during an administration that may experience potential corruption or conflicts of interest risks.
Just as important, however, is that Congress is not an institution that wants to message relaxation of the FCPA to permit companies to engage in foreign bribery, although I recognize that is a simplistic understanding of the law and its impact on companies. However, Congress does not want to embrace a message on this issue and explain why it enacted FCPA “reforms” that enabled bribery of foreign government officials.
I expect 2017 to be another big enforcement year, not because of conscious policy decisions, but because of the enforcement pipeline of cases. In 2015 we had a marked slowdown, partly because of policy decisions, and the creation of the FCPA Pilot Program, and partly because of the enforcement pipeline. In 2016, after a slow first quarter, DOJ enforcement picked up speed, and especially closed the year with some blockbuster cases.
On policies and case resolutions, here are my predictions for the upcoming year:
FCPA Pilot Program and modifications: The FCPA Pilot Program expires in April 2017. I expect DOJ will claim that the program has been a success. There is no question that the pilot program has brought greater transparency, increased consistency, and been a positive development.
However, I expect that the program may get formalized with a slight modification, or continue in a temporary mode for another year to allow further tinkering. Specifically, DOJ may propose to guarantee a declination when a company meets the three requirements of the pilot program: (1) voluntary disclosure; (2) cooperation; and (3) remediation. Under the current framework, a company is promised a reduction of 50 percent from the bottom of the applicable sentencing guideline range when it meets the three criteria set out above. The new administration may adopt a more favorable reward and provide for a declination for companies that meet the three requirements.
Increased ethics and compliance program expectations: There is no question that Hui Chen, DOJ Compliance Counsel, has had a major impact on DOJ’s compliance program expectations. She was instrumental in crafting the FCPA Pilot Program Remediation requirements, and in reviewing specific remediation efforts by companies negotiating settlements. There is no question that DOJ’s expectations are increasing, just as companies have committed themselves to robust ethics and compliance programs. DOJ has become more sophisticated in reviewing corporate compliance programs and identifying reasons for weaknesses or compliance failures. With this new and fresh perspective, DOJ will continue to push the standards for effective ethics and compliance programs, particularly in the areas of adequate resources, auditing (especially third party audit programs), monitoring, internal controls and third party risk management.
Yates memo and individual prosecutions: Everyone is getting tired of hearing how the Yates Memorandum will inevitably lead to increased individual criminal FCPA prosecutions. There is no shortage of candidates – all you have to do is read some of the major FCPA corporate settlements and the culpable individuals are described in great detail. To tell you the truth, it should be like shooting fish in a barrel.
On the specific enforcement front, I expect that several blockbusters will be resolved this year, including Wal-Mart, Microsoft and TeleSonaria. There are continuing investigations that have lingered, such as Orthofix and its DPA enforcement matter, as well as some in the oil and gas industry. Many of those should be reached during the year as the pipeline bulge is reduced.