{"id":8405,"date":"2022-12-13T14:11:28","date_gmt":"2022-12-13T14:11:28","guid":{"rendered":"https:\/\/www.americanconference.com\/fcpa-dc\/?page_id=8405"},"modified":"2023-01-19T16:54:53","modified_gmt":"2023-01-19T16:54:53","slug":"prevailing-themes-from-the-39th-international-conference-on-the-fcpa","status":"publish","type":"page","link":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/","title":{"rendered":"Prevailing Themes from the 39th International Conference on the FCPA"},"content":{"rendered":"
\r\n

By Jaclyn Jaeger<\/p>\r\n

Tuesday, December 13, 2022<\/p>\r\n<\/div>\r\n\r\n\r\n\r\n

Chief compliance officer certifications, compensation structures, voluntary self-disclosures, and compliance monitorships were just a few prevalent themes senior officials with the Department of Justice and the Securities and Exchange Commission discussed at the American Conference Institute\u2019s 39th International Conference on the Foreign Corrupt Practices Act (FCPA).<\/p>\r\n\r\n

Several panel discussions and keynotes over the course of the two-day flagship FCPA event harkened back to a memorandum<\/a> U.S. Deputy Attorney General (DAG) Lisa Monaco issued on Sept. 15, 2022, announcing several important updates to the Department of Justice\u2019s criminal enforcement policies.<\/p>\r\n\r\n

One prevailing theme throughout focused on the topic of voluntary self-disclosure. During a keynote panel kicking off the event, David Last, Chief of the Criminal Division\u2019s Fraud Unit, noted that several controlling factors make it \u201ca much tougher proposition these days\u201d for a company not to make a voluntarily self-disclosure when it becomes aware of potential misconduct.<\/p>\r\n\r\n

\u201cIf a company wants to roll the dice, that\u2019s fine\u2014but they\u2019re going to have to understand that is a risk that they face,\u201d Last said. If a whistleblower comes forward first, if an adverse media report comes out, if a corporate office in another country gets raided by local law enforcement, \u201cit\u2019s going to be a much different conversation, because instead of coming to us, we are probably coming to them and issuing a subpoena,\u201d he added.<\/p>\r\n\r\n

Nicole Argentieri, Acting Principal Deputy Assistant Attorney General at the Criminal Division reiterated that warning in a kickoff keynote given on the second day of the event. \u201cThe message here is clear: Do not wait for us to call you. By then, it is too late,\u201d she said.<\/p>\r\n\r\n

In answering a question about what constitutes \u201ctimely\u201d self-disclosure\u2014an explicit factor called out in DAG Monaco\u2019s memo for receiving full cooperation credit\u2014Last responded, it\u2019s \u201cvery fact-dependent. Sooner is obviously better.\u201d <\/p>\r\n\r\n

The DoJ is going to want to hear the company\u2019s perspective about what it views as \u201creasonably prompt,\u201d he continued. \u201cCompanies tend to know when they are pushing the envelope a bit in terms of the outer boundary of what might be reasonably prompt.\u201d<\/p>\r\n\r\n

Executive compensation structures<\/h5>\r\n\r\n

Executive compensation structures and clawback policies were another prevailing theme discussed among senior DoJ officials over the course of the two-day event. In light of the latest revisions to the DoJ\u2019s criminal enforcement policy, companies\u2019 executive compensation structures will face heightened scrutiny by the agency in evaluating the strength of the compliance program. <\/p>\r\n\r\n

Prosecutors will now more closely consider whether compensation structures not only incentivize compliance-promoting practices, but also whether companies \u201cimpose financial sanctions on employees, executives, or directors whose direct or supervisory actions or omission contributed to the criminal conduct,\u201d DAG Monaco said in her remarks announcing the memo. <\/p>\r\n\r\n

Specifically, prosecutors will \u201cevaluate what companies say and what they do, including whether, after learning of misconduct, a company actually claws back compensation or otherwise imposes financial penalties,\u201d DAG Monaco added. <\/p>\r\n\r\n

Given the newness of DAG Monaco\u2019s guidance, Last said, \u201cwe understand that companies are still thinking about this issue and putting it into place.\u201d At least, that is what the agency expects of companies. \u201cPart of what we want to know is, is the company thinking about this issue? Is it trying to put processes in place?\u201d he said. For some companies, it might not be on their radar at all. \u201cThat\u2019s not so great, but we\u2019d appreciate the candor.\u201d<\/p>\r\n\r\n

Last added that further guidance from the Criminal Division on how the agency will reward companies that employ claw back arrangements is expected \u201cin the coming months, if not sooner.\u201d<\/p>\r\n\r\n

During her keynote remarks, Argentieri provided further context around the forthcoming guidance. She said the Criminal Division is meeting with agency partners, including the SEC, members of the defense bar, and executive compensation experts \u201cto gain valuable perspectives.\u201d <\/p>\r\n\r\n

Based on their input, Argentieri added, \u201cwe are considering how prosecutors might reward companies that employ claw back policies and\/or bonuses and positive incentives for compliant behavior. This initiative underlines the importance of developing good corporate culture\u2014a culture that rejects wrongdoing for the sake of profit, that incentivizes good citizenship, and that empowers ethical employees.\u201d <\/p>\r\n\r\n

CCO certifications<\/h5>\r\n\r\n

Among the compliance and legal community, CCO certifications are another hot topic, and one that was also repeatedly mentioned throughout the event. The discussions stem from public remarks made in March , when Assistant Attorney General Kenneth Polite announced that for all corporate resolutions going forward\u2014guilty pleas, deferred prosecution agreements, and non-prosecution agreements\u2014CCOs and chief executive must \u201ccertify at the end of the term of the agreement that the company\u2019s compliance program is reasonably designed and implemented to detect and prevent violations of the law\u2014based on the nature of the legal violation that gave rise to the resolution, as relevant\u2014and is functioning effectively.\u201d<\/p>\r\n\r\n

This topic was discussed further in a special one-on-one interview with Glenn Leon, Chief of the Fraud Section. On the subject of CCO certifications, Leon, a former CCO himself, commented that the certification requirement should not be a \u201chard ask.\u201d <\/p>\r\n\r\n

\u201cIf you\u2019re a CCO that has had a several-year relationship with the DoJ and have been reporting out to my team and having regular touchpoints, you should be able to say, \u2018My program is reasonably designed to protect against and detect violations of the law,\u2019\u201d Leon said.<\/p>\r\n\r\n

On day two of the event, Argentieri in her keynote reiterated comments made in previous months by other senior DoJ officials: \u201cThis change is meant to empower, not punish, compliance teams and to ensure compliance officers have a seat at the table and an important voice in the organization,\u201d she said.<\/p>\r\n\r\n\"Anti-Corruption<\/a>\r\n\r\n

Independent compliance monitors<\/h5>\r\n\r\n

A third prevailing theme that took center stage concerned the DoJ\u2019s renewed focus on compliance monitors, prompted by DAG Monaco\u2019s recently released guidance for prosecutors on, as DAG Monaco explained, \u201chow to identify the need for a monitor, how to select a monitor, and how to oversee the monitor\u2019s work to increase the likelihood of success.\u201d <\/p>\r\n\r\n

On this topic, David Fuhr, Assistant Chief of the FCPA Unit, Fraud Section, in the DoJ\u2019s Criminal Division, said, \u201cIt has been, continues to be, and will be a fact-specific analysis when we have a company before us at a time of resolution and we are trying to understand whether the company needs a monitor.\u201d <\/p>\r\n\r\n

As the DAG memo made clear, \u201cthere is no presumption against a monitor,\u201d Fuhr continued. The analysis and factors the DoJ applies in determining whether a company needs a monitor \u201chave not changed all that much,\u201d he said. Those include the seriousness of the offense; involvement of senior-level management; the duration of the offense, whether it was pervasive or occurred across multiple countries; what remedial measures the company has done; and how effectively it has implemented a compliance program. <\/p>\r\n\r\n

\u201cThe last one is really where a lot of companies get tripped up, because by the time they are before us\u2014and it has been a while, perhaps, since the misconduct happened\u2014they have had a chance to develop a program, but it is not always at the stage where it is robust enough and where it has been tested sufficiently so that we can have the confidence that it\u2019s unlikely the misconduct will occur again,\u201d Fuhr said.<\/p>\r\n\r\n

For companies in the United Kingdom, however, it\u2019s a different story. In a keynote address, Lisa Osofsky, Director of the U.K. Serious Fraud Office, said, while the United Kingdom has \u201cmonitorship-like elements,\u201d like reviews of bribery and corruption policies, corporate deferred prosecution agreements are still a new concept, having been introduced in February 2014<\/a>. \u201cWe are still in the baby phase compared to the United States,\u201d she said.<\/p>\r\n\r\n

Reiterating a question on the minds of many as to why compliance monitorships have not come into play yet in the United Kingdom, Osofsky said, \u201cWhy hasn\u2019t it happened yet? We are interested in waiting for the right case and the right set of facts.\u201d<\/p>\r\n\r\n

Third-party messaging apps<\/h5>\r\n\r\n

The use of personal devices and third-party messaging applications for business purposes was another common theme throughout the event. As DAG Monaco explained in the new enforcement memo, \u201cAs a general rule, all corporations with robust compliance programs should have effective policies governing the use of personal devices and third-party messaging platforms for corporate communications, should provide clear training to employees about such policies, and should enforce such policies when violations are identified.\u201d\r\nDAG Monaco has further directed prosecutors to consider \u201cwhether a corporation seeking cooperation credit in connection with an investigation has instituted policies to ensure that it will be able to collect and provide to the government all non-privileged responsive documents relevant to the investigation, including work-related communications (e.g., texts, e-messages, or chats), and data contained on phones, tablets, or other devices that are used by its employees for business purposes.\u201d<\/p>\r\n\r\n

Last described ephemeral messaging and third-party messaging applications as \u201cchallenging and complicated issues,\u201d a sentiment shared by many in the legal and compliance profession. \u201cWe get that some companies are struggling with how to address this issue internally,\u201d he said, adding that the reason it\u2019s addressed in the corporate enforcement policy is to make sure companies are thinking about it.<\/p>\r\n\r\n

\u201cFrom our perspective, we are looking at it from a risk-based approach,\u201d Last said. \u201cIs the company identifying these risks, and how are they addressing them? We want to understand how the company is being responsible around this issue. How does its policy on messaging apps compare with other data retention policies in the company? Is the company policy reasonable in light of its risk profile? <\/p>\r\n\r\n

\u201cOur approach has always been risk-based, understanding what the company\u2019s policies and practices are in connection with messaging applications and whether that is reasonable to that company\u2019s risk profile,\u201d said Lorinda Lareya, Acting Co-Principal Deputy Chief of the Fraud Section.<\/p>\r\n\r\n

The Criminal Division is currently examining whether additional guidance is necessary regarding best practices for companies on the use of personal devices and third-party messaging apps.<\/p>\r\n\r\n

Broader enforcement trends<\/h5>\r\n\r\n

Several SEC and DoJ officials challenged assertions that FCPA enforcement activity is slowing down. \u201cI don\u2019t think there has been a precipitous decline, especially when you consider the number of individual cases the Department has been bringing,\u201d said Laryea, adding that the FCPA Unit is \u201cstill firing on all cylinders.\u201d<\/p>\r\n\r\n

There is always an \u201cebb and flow\u201d of cases that come out of the pipeline, but \u201cthat is all that it is,\u201d said Charles Cain, Chief of the SEC\u2019s FCPA Unit. Some cases take years to reach a resolution, so enforcement numbers are not a great benchmark. \u201cWe are just as busy as we have ever been,\u201d he said. <\/p>\r\n\r\n

As cooperation by foreign enforcement authorities continues to broaden, this will continue to only accelerate the scope and size of global anticorruption enforcement cases. Today, the DoJ has several foreign partners in the international fight against bribery and corruption, including, but not limited to, governments in the United Kingdom, Brazil, Malaysia, Switzerland, Ecuador, France, Netherlands, and others, Argentieri stressed. \u201cAs a Department, we will continue to work tirelessly with our international partners to detect and prosecute corruption,\u201d she said. \u201cSimply put, the recent trend of coordinated investigations and resolutions is here to stay.\u201d<\/p>\r\n\r\n\r\n

For questions, concerns or more information about ACI Insights, please contact:<\/strong>
Chris Corbin
Associate Director of Marketing
American Conference Institute |<\/span> The Canadian Institute |<\/span> C5
E: c.corbin@americanconference.com<\/a><\/p>","protected":false},"excerpt":{"rendered":"By Jaclyn Jaeger Tuesday, December 13, 2022 Chief compliance officer certifications, compensation structures, voluntary self-disclosures, and compliance monitorships were just a few prevalent themes senior officials with the Department of Justice and the Securities and Exchange Commission discussed at the American Conference Institute\u2019s 39th International Conference on the Foreign Corrupt Practices Act (FCPA). Several panel…","protected":false},"author":20267,"featured_media":0,"parent":6569,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-8405","page","type-page","status-publish","hentry"],"yoast_head":"\nPrevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption<\/title>\n<meta name=\"robots\" content=\"noindex, nofollow\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption\" \/>\n<meta property=\"og:description\" content=\"By Jaclyn Jaeger Tuesday, December 13, 2022 Chief compliance officer certifications, compensation structures, voluntary self-disclosures, and compliance monitorships were just a few prevalent themes senior officials with the Department of Justice and the Securities and Exchange Commission discussed at the American Conference Institute\u2019s 39th International Conference on the Foreign Corrupt Practices Act (FCPA). Several panel…\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/\" \/>\n<meta property=\"og:site_name\" content=\"FCPA and Global Anti-Corruption\" \/>\n<meta property=\"article:modified_time\" content=\"2023-01-19T16:54:53+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.americanconference.com\/fcpa-dc\/wp-content\/uploads\/sites\/2080\/2026\/06\/700L_linkedin_general_1200x1200.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"1200\" \/>\n\t<meta property=\"og:image:height\" content=\"1200\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data1\" content=\"9 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/\",\"url\":\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/\",\"name\":\"Prevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption\",\"isPartOf\":{\"@id\":\"https:\/\/www.americanconference.com\/fcpa-dc\/#website\"},\"datePublished\":\"2022-12-13T14:11:28+00:00\",\"dateModified\":\"2023-01-19T16:54:53+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.americanconference.com\/fcpa-dc\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"ACI Insights\",\"item\":\"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/\"},{\"@type\":\"ListItem\",\"position\":3,\"name\":\"Prevailing Themes from the 39th International Conference on the FCPA\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.americanconference.com\/fcpa-dc\/#website\",\"url\":\"https:\/\/www.americanconference.com\/fcpa-dc\/\",\"name\":\"Foreign Corrupt Practices Act\",\"description\":\"Template used to create new conference sites\",\"alternateName\":\"FCPA\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.americanconference.com\/fcpa-dc\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Prevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption","robots":{"index":"noindex","follow":"nofollow"},"og_locale":"en_US","og_type":"article","og_title":"Prevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption","og_description":"By Jaclyn Jaeger Tuesday, December 13, 2022 Chief compliance officer certifications, compensation structures, voluntary self-disclosures, and compliance monitorships were just a few prevalent themes senior officials with the Department of Justice and the Securities and Exchange Commission discussed at the American Conference Institute\u2019s 39th International Conference on the Foreign Corrupt Practices Act (FCPA). Several panel…","og_url":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/","og_site_name":"FCPA and Global Anti-Corruption","article_modified_time":"2023-01-19T16:54:53+00:00","og_image":[{"width":1200,"height":1200,"url":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-content\/uploads\/sites\/2080\/2026\/06\/700L_linkedin_general_1200x1200.jpg","type":"image\/jpeg"}],"twitter_card":"summary_large_image","twitter_misc":{"Est. reading time":"9 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebPage","@id":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/","url":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/","name":"Prevailing Themes from the 39th International Conference on the FCPA | ACI Insights | FCPA and Global Anti-Corruption","isPartOf":{"@id":"https:\/\/www.americanconference.com\/fcpa-dc\/#website"},"datePublished":"2022-12-13T14:11:28+00:00","dateModified":"2023-01-19T16:54:53+00:00","breadcrumb":{"@id":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/prevailing-themes-from-the-39th-international-conference-on-the-fcpa\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.americanconference.com\/fcpa-dc\/"},{"@type":"ListItem","position":2,"name":"ACI Insights","item":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/"},{"@type":"ListItem","position":3,"name":"Prevailing Themes from the 39th International Conference on the FCPA"}]},{"@type":"WebSite","@id":"https:\/\/www.americanconference.com\/fcpa-dc\/#website","url":"https:\/\/www.americanconference.com\/fcpa-dc\/","name":"Foreign Corrupt Practices Act","description":"Template used to create new conference sites","alternateName":"FCPA","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.americanconference.com\/fcpa-dc\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"}]}},"_links":{"self":[{"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/pages\/8405","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/users\/20267"}],"replies":[{"embeddable":true,"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/comments?post=8405"}],"version-history":[{"count":0,"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/pages\/8405\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/pages\/6569"}],"wp:attachment":[{"href":"https:\/\/www.americanconference.com\/fcpa-dc\/wp-json\/wp\/v2\/media?parent=8405"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}