Continuing with a phrase she first used on the conference circuit last month, yesterday in this speech Deputy Attorney General Lisa Monaco again called sanctions enforcement “the new FCPA.”
But what does that phrase even mean?
Does it mean that the DOJ will be bringing on average 7 corporate enforcement actions per year (the average number of corporate FCPA enforcement actions over the past decade)? Is that a large number of enforcement actions or a small number of enforcement actions given the number of business organizations subject to various sanctions laws?
Does it mean that the DOJ will be enforcing various sanctions laws in the general absence of meaningful judicial scrutiny (as non-prosecution agreements, deferred prosecution agreements, and even declinations with disgorgement dominate FCPA enforcement)?
Does it mean that approximately 80% of corporate sanctions enforcement actions are going to lack any related individual prosecutions – even though a business organization can only violate sanctions laws – like the FCPA – through the conduct of real human beings?
Does it mean that business organizations under scrutiny for sanctions violations will be under scrutiny for approximately four years (which is the average length of FCPA scrutiny in the FCPA’s modern era).
Does it mean that non-legal sources of information such as DOJ guidance or DOJ resolved enforcement actions will define this new era of sanctions enforcement – as it has largely defined the FCPA’s modern era?
If these things are what is meant by the phrase “the new FCPA,” I am not sure why DOJ officials would call anything the “new FCPA.”