The potential changes coming to the regulatory landscape can get your head spinning. President Trump has demonstrated that he is ready to make changes to the old way of doing things. This will likely include changes to enforcement of the Foreign Corrupt Practices Act. Prior to becoming President, President Trump voiced his opposition to the FCPA on CNBC’s “SquawkBox” in 2012, calling it a “horrible” law. This has led many to speculate that President Trump will ease FCPA enforcement.
Certainly, we should expect that there will be changes—every administration has left their stamp on FCPA and President Trump likely will too. But it’s hard to say which direction the new administration will take FCPA enforcement. Still we see some key indicators that a change wind is coming with the President’s new appointments to the DOJ and SEC.
The President’s pick to be the next SEC chief, Jay Clayton wrote that the United States should re-evaluate its approach to the problem of foreign corruption, in a paper for the New York Bar Association. And, as noted on the FCPA Professor Blog, the newly appointed DOJ Deputy Assistant Attorney General, Trevor McFadden who will oversee FCPA enforcement cases has written on the lack of case law associated with the FCPA. “The FCPA practice has primarily evolved through a series of corporate settlement agreements, over which courts have little to no supervision and in which the burden of proof for evidentiary purposes has less impact. The relative absence of case law in the field has meant that the Justice Department has been able to advance expansive views regarding the scope and applicability of the FCPA,” said McFadden in a co-authored article. He has also emphasized holding individuals accountable for corporate wrongdoing, and that corporations looking for cooperation credit should plan on providing a list of guilty people that have broken the FCPA laws.
What about the person that the President has nominated to be Attorney General, Senator Jeff Sessions? During his confirmation hearings he stated “Yes, if confirmed as attorney general, I will enforce all federal laws, including the Foreign Corrupt Practices Act and the International Anti-Bribery Act of 1998, as appropriate based on the facts and circumstances of each case." This is what we expect the new nominee for Attorney General to say, that the laws as instituted should be enforced.
The heads of these agencies will influence the enforcement of FCPA and time will tell more about their stances on FCPA laws. No matter the potential for change, being compliant with FCPA regulations remains critical and companies should continue robust FCPA compliance programs.
But, keeping your FCPA program in line with the DOJ’s expectations and navigating compliance requirements is complicated. Today, the onus remains on corporations to identify and self-report individual accountability to the DOJ and SEC. To do so, organizations are implementing comprehensive transaction monitoring to prevent, detect and remediate potential violations. Anything less can put global businesses with international interests at risk.
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