On December 14, 2023, the U.S. Congress passed the Foreign Extortion Prevention Act (“FEPA”), one of the most important expansions of anti-corruption law in recent years and a key to expanding “demand-side” corruption enforcement. FEPA makes it unlawful for foreign officials to demand or accept bribes from U.S. persons or entities or from anyone if the foreign official is in the United States. FEPA operates in concert with its “supply-side” counterpart, the Foreign Corrupt Practices Act (“FCPA”), which prohibits paying bribes to foreign officials to assist in obtaining or retaining business.

It is highly likely that President Biden will soon sign FEPA into law, as the Biden administration has committed to working with “allies and partners on enacting legislation criminalizing the demand side of bribery, and enforcing new and existing laws” as part of its effort to make fighting corruption, including enhancing demand-side accountability, a priority.Continue Reading U.S. Congress Passes FEPA To Address the “Demand-Side” of Bribery

On March 2, 2023, U.S. Department of Justice Deputy Attorney General (DAG) Lisa Monaco once again delivered groundbreaking remarks at the American Bar Association National Institute on White Collar Crime, this time heralding a new era of corporate enforcement aimed at addressing U.S. national security priorities.  Last spring, as U.S. sanctions against Russia rolled out, DAG Monaco described sanctions as “the new FCPA (Foreign Corrupt Practices Act”)” in terms of DOJ priorities, sending shockwaves through the world of corporate compliance.  Since then, DOJ has borne that promise out largely through an aggressive campaign, championed by Task Force KleptoCapture, as we have previously written about, resulting in a large number of criminal cases targeting individual defendants. 

In this most recent announcement, DAG Monaco set a new tone: announcing that enforcement of national security-related violations—most notably sanctions evasion and export control violations—against corporations would be among the top priorities of the DOJ.  Later in the day, Matthew Axelrod, Assistant Secretary for Export Enforcement within the Department of Commerce, Bureau of Industry and Security (BIS), drove home that point, emphasizing that companies should no longer view export control and sanctions violations as “technical violations,” but would be well advised to view them as enterprise risks given the prioritization these issues are receiving within the various government enforcement agencies, including the DOJ.  Further highlighting this new landscape, the Department of Treasury Office of Foreign Assets Control (OFAC) spoke at the ABA White Collar Conference for the first-time ever on March 2 and the DOJ, BIS and OFAC issued their first-of-its kind joint compliance guidance the same day, relating to third party-intermediary risks. 

It was a day filled with sea-changing announcements for sanctions and export control enforcement, but the takeaway was simple: Sanctions and export controls really are the new FCPA in terms of corporate enforcement priorities and related compliance expectations.  The Money Laundering and Asset Recovery Section (MLARS) has already begun conducting sanctions- and export-related investigations.Continue Reading DOJ to Prioritize Enforcement of Sanctions and Export Control Violations Against Corporations

Just this week, the Securities and Exchange Commission announced its enforcement results from fiscal year 2022. The Commission recovered a record $6.4 billion in penalties and disgorgement from companies and individuals. The announcement touted the 760 total enforcement actions in FY 2022—a nine percent increase from the year before—and summarized areas of innovation and growth within the Enforcement Division. Two such areas are familiar refrains that are worth highlighting: (1) the SEC leveraging its investigative process—emphasizing its use of data analytics—to identify suspicious activity; and (2) its penalties against “gatekeepers” (i.e., individuals and companies who owe a heightened duty of trust and responsibility to clients and investors).Continue Reading Play it again, SEC: Two Familiar Refrains from the FY 2022 Enforcement Results

On September 15, 2022, Deputy Attorney General (DAG) Lisa Monaco, announced several significant policy updates impacting the U.S. Department of Justice’s (DOJ) enforcement practices for both corporations and individuals. Speaking to attendees at the NYU Program on Corporate Compliance and Enforcement (PCCE), DAG Monaco detailed a series of initiatives, some of which appear to have emerged from the Corporate Crime Advisory Group formed last fall to conduct a full-scale review of the DOJ’s corporate enforcement efforts. The DOJ simultaneously released a memorandum outlining the guidance announced by DAG Monaco. 

The new guidance bolsters enforcement priorities that DAG Monaco has emphasized over the past year. As discussed in further detail below, the Department’s policy updates are substantive and have significant ramifications on both the individual and corporate level, including: (1) continued focus on individual accountability; (2) enhanced policies to predictably reward voluntary self-disclosure; (3) further clarity on the impact of corporate recidivism considerations on negotiated resolutions with the DOJ; and (4) new metrics for evaluating effective corporate compliance, including compliance conscious compensation structures and policies on the use of personal devices and third party messaging applications.Continue Reading DOJ Announces Sweeping Policy Updates Targeting Corporate Criminal Enforcement and Individual Accountability

On April 14, 2022, the Financial Crimes Enforcement Network (FinCEN) issued an advisory focusing on detecting kleptocrats (i.e., government officials who appropriate national resources for personal gain) and the proceeds of foreign public corruption and preventing them from entering the U.S. financial system. This guidance is the latest in a series of advisories FinCEN has issued focusing on Russian kleptocracy, and is part of a broader strategic initiative among key U.S. and global law enforcement and regulatory agencies focusing on corruption and money laundering as critical national security risks. In particular, the advisory highlights the enhanced focus of U.S. enforcement resources on the attempts of Russian oligarchs to evade sanctions imposed by the United States and its allies in response to Russia’s invasion of Ukraine.

U.S. law enforcement and regulatory agencies have high expectations as to the compliance efforts U.S. companies will adopt to meet this moment. Enforcement against companies and individuals involved in missteps is likely to be aggressive and robustly resourced. Indeed, the Department of Justice (DOJ) announced on April 6, 2022, in connection with the unsealing of an indictment of a Russian oligarch charged with U.S. sanctions violations, that it will “work relentlessly to counter Russian aggression, including by enforcing U.S. sanctions law.”
Continue Reading As Russia Sanctions Mount, FinCEN Issues Advisory on Kleptocracy and Foreign Public Corruption

The Federal Trade Commission (FTC) recently issued a new policy statement expanding its criminal referral policy. While the FTC’s authority is limited to civil enforcement, the agency aims to enhance its efforts to address misconduct the FTC uncovers that may trigger criminal sanctions for companies and individuals and make referrals to law enforcement when appropriate. The agency aims to deter potential criminal activity in both its consumer protection and competition arms.

In announcing its new policy statement, the FTC pointed to its existing efforts regarding criminal referrals, including 36 referrals this year to prosecutors from the FTC’s Criminal Liaison Unit and 840 formal requests for cooperation from criminal law enforcement partners over the past five years. The FTC reported that prosecutors relied on FTC information and support to charge 228 new defendants and obtained 283 new pleas or convictions over a five-year period.

On a going forward basis, the FTC has signaled that it will continue to prioritize the referral of potential criminal conduct and take steps to facilitate uptake of those cases by appropriate authorities. Specifically, the FTC pointed to four practices to forward the goals of the new policy statement:

  • Developing guidelines to ensure criminal law violations — particularly by major corporations and their executives — are identified by staff and promptly referred to criminal law enforcement agencies;
  • Convening regular meetings with federal, state, and local criminal authorities to facilitate coordination with FTC and law enforcement;
  • Offering further trainings for all law enforcement regarding the FTC’s Consumer Sentinel database system, which offers access to, and analysis of, millions of consumer complaints and fraud allegations submitted to the FTC; and
  • Publicly reporting the agency’s criminal referral efforts at regular intervals to highlight criminal prosecutions. The FTC will begin issuing regular public reports on its work detailing the number of referrals, the general nature of the alleged conduct involved, and, when appropriate, more detailed information concerning criminal enforcement actions that stem from Commission actions and investigations.

Continue Reading FTC Issues Policy Statement Aimed at Increasing Criminal Referrals for Corporations & Executives

During a speech last week to a group of white collar defense attorneys, John Carlin, a senior official at the Department of Justice (DOJ) confirmed what many in the white collar and corporate compliance space have been preparing for since January: the DOJ is devoting a “surge” of resources to ramp up its white collar enforcement efforts. According to a report by The Wall Street Journal*, Carlin listed several agency actions that are either in the works or already underway:

  • Embedding Federal Bureau of Investigation agents within the DOJ, including a new “squad” of dedicated agents in the agency’s fraud section, to focus on investigations into foreign bribery, market manipulation, and healthcare fraud cases;
  • Enhancing efforts to incentivize companies to develop compliance programs to preemptively prevent legal violations by employees;
  • Developing new tools, including the use of data analytics, to identify corporate wrongdoing (and encouraging corporations to do the same); and
  • More strictly enforcing the terms of deferred- and non-prosecution agreements.

Although the increased focus on enforcement should not come as a surprise to careful (or even casual) observers, the DOJ’s emphasis on preemptive compliance suggests the agency will be receptive to organizations who are proactively improving their compliance practices.

Companies should consider reviewing their compliance policies and implementing certain best practices to minimize the risk of being swept up in any future enforcement pushes:Continue Reading Preparing for DOJ’s White Collar Enforcement “Surge”: Five Compliance Practices for Companies to Shore Up Now

On July 19, 2021, CME Group Inc. (the CME), the parent company of derivatives exchanges including the Chicago Mercantile Exchange and New York Mercantile Exchange, issued a Market Regulation Advisory Notice amending prior guidance on prohibited disruptive trading practices. The CME’s amended Advisory Notice RA2107-5 (Advisory Notice), took effect on August 2, 2021, and impacts

Ben Purser, chief risk officer for mortgage lender, Roundpoint Mortgage Servicing Corporation, and Barak Cohen, partner in Perkins Coie’s White Collar & Investigations practice and lead for the firm’s Commercial Litigation in Washington, D.C., discuss the challenges of legal compliance and risk in an industry that has been directly affected by two global financial crises

Perkins Coie’s award-winning White Collar & Investigations practice has teamed up with the ABA’s Global Anti-Corruption Committee to launch a podcast series as an extension of our White Collar Briefly blog.

Our first five episodes, linked below, feature fascinating, candid conversations with a variety of special guests, including:

  • American “book of the year” author, editor, screenplay writer and publisher Dave Eggers
  • Joel Esquenazi (defendant in the high-profile US v. Esquenazi FCPA case)
  • Molson Coors’ Global Ethics & Compliance Chief Caroline McMichen
  • Chicago-based U.S. District Judge Virginia Kendall
  • University of Colorado COO (and former GC) Patrick O’Rourke
  • Avanos Medical Deputy GC Ross Mansbach

Note that all episodes are available on Spotify, Google Podcast, and Apple Podcast. Additionally, you can visit our blog and subscribe to receive each new podcast, including the highly-anticipated Dave Eggers podcast, in your inbox.
Continue Reading Introducing the White Collar Briefly Podcast