James Tillen and Will Barry Comment on FCPA Enforcement Trends in the Anti-Corruption Report

"DOJ Enforcers Tout Transparency, the Defense Bar Responds"

Anti-Corruption Report

12.11.2019

James Tillen and Will Barry commented on how U.S. Securities and Exchange Commission (SEC) and Department of Justice (DOJ) Foreign Corrupt Practices Act (FCPA) enforcement trends affect companies' self-reporting and compliance programs. At a recent conference, Charles Cain, head of the SEC's FCPA Unit, said transparency initiatives within the DOJ that result in an increase in company self-reporting at that agency will also do the same at the SEC, including for low-level issues that may not turn out to be serious. Even so, Tillen said written guidance from the SEC would still be helpful. "Given the SEC's broad interpretation of the FCPA's accounting provisions," Tillen said, "guidance is needed regarding when internal accounting controls weaknesses and books-and-records inaccuracies, in the absence of confirmed bribery, are sufficient to merit disclosure in the view of the SEC."

Although DOJ Assistant Attorney General Brian Benczkowski also spoke at the conference about DOJ's efforts to increase transparency and trust with companies, ambiguity still exists as to how compliance programs will be evaluated in practice. "There remains much room for improvement when it comes to the more granular aspects of how prosecutors will evaluate compliance program remediation, notwithstanding the recent guidance," Barry said. "Currently, the process varies widely depending on the experience and temperament of the individual prosecutor." Benczkowski also sought to assuage concerns that the DOJ might pursue agency-based FCPA cases following the conviction of Lawrence Hoskins, a foreign national and former Alstom S.A. executive convicted last month of multiple FCPA and money laundering violations. Barry said Benczkowski "provided a clear view of the Department's position as well as some attempt at reassuring the FCPA bar that prosecutors will not use Hoskins as a blank check to prosecute on the basis of agency when the connection is tenuous."