Deputy AG Monaco On Individual Accountability, Prior Misconduct, Monitors, And NPAs and DPAs (With Commentary)
Last week, Deputy Attorney General Lisa Monaco delivered this speech as part of the ABA’s National Institute on White Collar Crime.
While the speech is generating a significant amount of attention, substantively the speech was largely a yawner and the policy changes articulated are marginal at best and elevate form over substance.
As has been highlighted several times on these pages, FCPA (and related) enforcement has long suffered from the following problem (nicely articulated by a practitioner in 1982):
DOJ To Increase Its Focus On Investigations, Prosecutions, And Asset Recoveries Relating To Corruption In Northern Triangle Countries
Presumably in connection with the visit by Vice President Kamala Harris to Guatemala, earlier this week U.S. Attorney General Merrick Garland “announced a series of steps that the Department of Justice is taking to address the threats posed by both corruption and by transnational human smuggling and trafficking networks” in Central America.
The main focus of the establishment of so-called “Joint Task Force Alpha” will be “to enhance U.S. enforcement efforts against the most prolific and dangerous human smuggling and trafficking groups operating in Mexico and the Northern Triangle countries of Guatemala, El Salvador, and Honduras.”
In addition, the DOJ release states: “Joint Task Force Alpha will also complement the Justice Department’s efforts to fight corruption. The Justice Department will increase its focus on investigations, prosecutions, and asset recoveries relating to corruption in Northern Triangle countries through its Foreign Corrupt Practices Act enforcement program, counternarcotics prosecutions, and Kleptocracy Asset Recovery Initiative.”
Friday Roundup
Just don’t call it bribery, help wanted at the DOJ, and SEC names a new enforcement director. It’s all here in the Friday roundup.
Just Don’t Call It Bribery
Even though this past January’s presidential inauguration was substantially scaled down from prior inaugurations because of COVID, according to this article President Biden’s inaugural committee raised $61.8 million for the televised virtual event.
Remember When …
Remember when Acting Principal Deputy Assistant Attorney General Trevor McFadden stated that it was the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”
This statement was made four years ago this week (see here for the prior post).
However, like much DOJ rhetoric surrounding the FCPA, it was just empty words. As highlighted below, since the DOJ’s statement of intention it has resolved approximately 30 corporate enforcement actions and the average length of time a company has been under FCPA scrutiny has been approximately 4.25 years.
Slumbering Individual FCPA Enforcement Actions
Most in the Foreign Corrupt Practices Act space learn when the DOJ announces criminal FCPA charges against individuals. Thereafter, the tendency (including myself) is to sort of forget about many of the individual cases.
However, recently I examined the dockets for all individuals criminally charged with FCPA offenses since January 1, 2017 and was surprised to learn that a meaningful percentage of these cases are slumbering with no substantive activity recorded in quite some time.
Thus, when viewing DOJ FCPA individual enforcement action statistics it is important to keep in mind that many of these cases are slumbering and are not being actively prosecuted.