On December 1, 2022, at the American Conference Institute’s 39th International Conference on the Foreign Corrupt Practices Act (“FCPA”) in Washington D.C., Acting Principal Deputy Assistant Attorney General Nicole M. Argentieri (“DAAG Argentieri”) gave a special keynote speech highlighting developments in FCPA enforcement by the Department of Justice (“DOJ” or the “Department”), including with regard to the application of the DOJ’s announcement of corporate criminal enforcement policy priorities in September of this year.[1]  DAAG Argentieri focused on several policy changes and enforcement trends and initiatives using examples from this year’s FCPA resolutions and declination,[2] as well as from the Money Laundering and Asset Recovery Section’s Kleptocracy Asset Recovery Initiative.  Below, we provide the highlights of DAAG Argentieri’s speech on FCPA enforcement, each of which draw on prior announcements regarding recent DOJ policy changes:

  • Continued Cooperation with International Counterparts in Cross-Border Investigations. Referring to a long-existing practice of coordinated investigations with foreign authorities, including to avoid “piling-on”, DAAG Argentieri previewed an expansion of work with new jurisdictions and forthcoming updates on trends in international cooperation.  “Simply put, the recent trend of coordinated investigations and resolutions is here to stay.”
  • Initial Guidance on Third Party Messaging Tools. In September 2022, Deputy Attorney General Lisa O. Monaco (“DAG Monaco”) announced that prosecutors would be instructed to take into account in their assessment of a company’s compliance program the extent to which the program included policies around employees’ use of personal communications devices or third-party communications applications.  DAAG Argentieri reiterated that the use of such tools, especially ephemeral messaging tools that may be employed by companies due to their reliability and security encryption, “present challenges for companies’ ability to ensure [that] they have a well-functioning compliance program and ability to access such communications when necessary.”  Further guidance on this issue is also forthcoming within the coming months.  The Criminal Division is examining the value of additional guidance regarding the use of personal devices and third-party messaging applications.[3]
  • Enhanced Public Recordkeeping Regarding Resolutions and Monitors. As part of ongoing efforts to improve transparency into the Department’s decision-making in corporate matters, the DOJ recently updated the Fraud Section’s website to include monitor selections for the last 10 years for FCPA (and other) resolutions where a corporate monitor has been appointed.  The webpage, updated most recently last month, includes the name of the monitor, the name of the company, the year of monitor appointment, and the relevant DOJ unit overseeing the monitorship (for example, FCPA or Market Integrity and Major Frauds (“MIMF”)).  The data shows that, since 2012, there have been a total of 33 corporate monitors appointed by the DOJ, of which 24 have been in the context of FCPA resolutions; 7 in MIMF; one in Healthcare Fraud and one as part of the Deepwater Horizon Task Force.  Among the monitors appointed during this period, three individuals have served as corporate monitors more than once.
  • Forthcoming Guidance on Compensation Clawback Clauses. As previewed by DAG Monaco, the Criminal Division is also considering providing additional guidance on how the DOJ evaluates compensation clawback policies, in an effort to reward companies that adopt proper financial incentive structures for their employees’ cooperation and adherence to compliance policies.  DAAG Argentieri noted that, to that end, DOJ prosecutors have been meeting with, among others, agency partners (such as the SEC); members of the defense bar; experts on executive compensation; and other regulators to gather their views and input.

As we have previously reported, the Department has made it among its most pressing priorities to curb corporate recidivism, ensure individual accountability and reinvigorate the corporate compliance monitor program.  DAAG Argentieri’s updates at the International Conference on the FCPA are consistent with each of the DOJ’s current commitments and goals, especially coming out of a period when “prosecutors and agents [] were largely grounded for over a year by a global pandemic.”  Finally, as DAAG Argentieri remarked at multiple points throughout the speech, additional policy updates and “several” more FCPA resolution announcements are expected in the coming months. [4]

[1]              We covered these updates previously in our September 19 blogpost.

[2]              At the time of the speech, the three FCPA corporate enforcement actions in 2022 involved Stericycle, Glencore, and GOL Airlines.  DOJ also declined to prosecute Jardine Lloyd Thompson (JLT) Group Holdings for violations of the FCPA in light of voluntary self-reporting by the company regarding bribe payments to Ecuadorian government officials.  The Department still sought disgorgement from JLT Group and, consistent with its priorities, prosecuted five individuals involved in the misconduct.

[3]              Currently, as noted by DAAG Argentieri, there is existing cooperation credit guidance from the Department that companies under investigation prohibit the deletion of business records and implement appropriate programs for the use of personal communication and ephemeral messaging platforms.  Earlier last week, DOJ FCPA Unit Chief David Last stated at the International White Collar Crime Symposium hosted by the New York City Bar that additional guidance could be expected “in the next couple months.”

[4]              In fact, the day after the speech, the DOJ announced a $315 million FCPA settlement with ABB Ltd., coordinated with authorities in South Africa, Germany and Switzerland regarding the bribery of a high-ranking official at South Africa’s state-owned energy company.