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100 Days of FCPA Under Trump: 10 Takeaways by Meghan Hansen and Carolyn Wald, Latham & Watkins LLP

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100 Days of FCPA Under Trump: 10 Takeaways by Meghan Hansen and Carolyn Wald, Latham & Watkins LLP Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] 100 Days Of FCPA Under Trump: 10 Takeaways By Meghan Hansen and Carolyn Wald, Latham & Watkins LLP Law360, New York (April 27, 2017, 5:33 PM EDT) -- Since President Donald Trump’s election, there has been uncertainty about how the new administration will impact enforcement of the Foreign Corrupt Practices Act. Looking back at the first 100 days of the Trump administration, these are the top 10 things that compliance professionals working for U.S. companies should know when evaluating the future of the FCPA: 1. President Trump Has Criticized the FCPA in the Past During a 2012 CNBC appearance, President Trump called the FCPA a “horrible law” that “should be changed.”[1] He continued, stating that it puts U.S. businesses at a Meghan Hansen “huge disadvantage.” Given that President Trump made these statements five years ago, when he had not yet entered into the political arena, it is difficult to assess the extent to which his past opinions reflect his current views. As a general matter, President Trump and members of his administration have levied harsh criticism against “overregulation,” which they say puts U.S. businesses at a disadvantage in the global marketplace and overburdens smaller U.S. businesses.[2] As a salient example, in February, President Trump signed a law repealing U.S. Securities and Exchange Commission Rule 13q-1, which required disclosure of payments made by resource extraction issuers to governmental entities for commercial development of the resources.[3] (Before this, the Carolyn Wald Congressional Review Act had been used only once to invalidate a rule: In 2001, the Bush administration repealed a Clinton-era Occupational Safety and Health Administration rule on workplace ergonomic injuries.[4]) A White House press release announcing President Trump’s signing referred to Rule 13q-1 as “costly,” “misguided,” and placing U.S. extraction companies at an “unfair disadvantage.”[5] While not part of the FCPA, Rule 13q-1 related to payments to governments (foreign and U.S.), and its repeal may give some insight into how the administration views the risks surrounding such payments (at least compared with the burdens of disclosure). 2. Attorney General Sessions Has Committed to Enforce the FCPA Jeff Sessions, a Republican U.S. senator from Alabama, was confirmed as U.S. attorney general on Feb. 8. Sessions was previously the U.S. attorney for the Southern District of Alabama and attorney general for Alabama. In a March 8 memorandum[6] and an April 11 speech[7] to Customs and Border Protection employees, Sessions affirmed that fighting violent crime and unauthorized immigration will be top priorities for the U.S. Department of Justice. This could mean that Sessions will direct resources away from investigating white-collar crimes and corruption occurring outside of U.S. borders. Nevertheless, on April 20, 2017, Trevor McFadden, acting principal deputy assistant attorney general of the DOJ’s Criminal Division said he intended to “dispel [the] myth” that Sessions’ emphasis on violent crime indicates that “the Department of Justice no longer is interested in prosecuting white collar crime.”[8] McFadden continued: “While we are boosting our focus on violent crime prosecutions, the Criminal Division is fully engaged in combatting crime in all its forms, and no matter what color collar its perpetrators wear.”[9] Two days prior, McFadden gave another speech in which he specifically reiterated the DOJ’s commitment to enforcing the FCPA: “As I have said before, and more importantly as Attorney General Jeff Sessions has stated in his confirmation process, the department remains committed to enforcing the FCPA and to prosecuting fraud and corruption more generally.”[10] Further, Sessions’ reputed “tough-on-crime philosophy”[11] could extend to corruption and other white collar crimes. In response to a written questionnaire presented by Sen. Sheldon Whitehouse, D-R.I., to Sessions, following his Senate Judiciary Committee hearing, Sessions specifically affirmed that he planned to enforce the FCPA.[12] Most recently, on April 24, Sessions confirmed that the DOJ’s focus on violent crime and unauthorized immigration does not signal a drop in white collar crime enforcement: “We will also enforce these laws so we can protect honest businesses. Companies that obey law should not be at [sic] disadvantage.”[13] He added: “One area where this is critical is the Foreign Corrupt Practices Act.”[14] Compliance professionals should also note that the majority of DOJ prosecutors are career professionals who remain in place throughout changes to political regime. Thus, any significant changes to operations would take place slowly, as personnel leave the DOJ and are replaced. 3. Jay Clayton’s Views Are Uncertain Jay Clayton, a former Sullivan & Cromwell LLP partner, received approval from the Senate Banking Committee on April 4, taking one step closer to becoming the next chairman of the SEC. President Trump, when announcing Clayton’s nomination in January, stated, “[W]e need to undo many regulations which have stifled investment in American businesses, and restore oversight of the financial industry in a way that does not harm American workers.”[15] Assuming Clayton will be confirmed, he will have significant control over the future of how the SEC enforces the FCPA. For example, in 2016, the SEC settled 26 FCPA cases.[16] In 2011, as chairman of the New York City Bar Association’s Committee on International Business Transactions, Clayton participated in preparing a report that criticized “zealous” FCPA enforcement as “causing lasting harm to the competitiveness of U.S. regulated companies and the U.S. capital markets.”[17] However, the report was published nearly six years ago and Clayton has not indicated whether it reflects his current beliefs about the FCPA. Even so, the report emphasizes that it is not advocating a “lighter touch” on bribery.[18] Rather, the report questions the effectiveness of the then-current approach, calling for changes such as increased cooperation with foreign governments and greater clarity on what is prohibited. Some of these criticisms have perhaps been addressed since 2011 through measures such as the SEC and DOJ’s 2012 Resource Guide to the U.S. Foreign Corrupt Practices Act.[19] Clayton himself has not promised sweeping changes to the SEC’s enforcement tactics. At his Senate Banking Committee confirmation hearing, Clayton stated there was “zero room for bad actors” and confirmed he was “100 percent committed to rooting out any fraud and shady practices.”[20] More expressly, Clayton stated that “individual prosecution, particularly in the white-collar area, has a significant effect on behavior.”[21] Additionally, as at the DOJ, most SEC personnel are career professionals that will continue at their current posts despite changes in political leadership. Nevertheless, the SEC announced on April 4 that Kara Brockmeyer, chief of the SEC’s FCPA Unit, will be retiring from the agency at the end of the month.[22] Whether this will change the unit’s approach remains to be seen. 4. Don’t Assume Republican Always Means Less Enforcement While the official platform of the Republican Party has long included economic deregulation,[23] a Republican president does not guarantee more relaxed regulatory enforcement. For example, under the Bush administration, there was a marked increase in FCPA enforcement.[24] It is also important to remember that the FCPA brings in revenue, which is a boon for every administration. In 2016 alone, sanctions related to FCPA enforcement actions totaled over $2.6 billion.[25] 5. The FCPA Pilot Program is Alive and Well (For Now) The DOJ’s FCPA Pilot Program was created to motivate self-disclosure and cooperation through decreased fines and possible declinations to companies who voluntarily disclose FCPA misconduct, cooperate with subsequent investigation, and provide necessary remediation. The program took effect in April 2016 for a one-year trial period.[26] A month before the program was set to expire, Acting Assistant Attorney General Kenneth Blanco announced that the program would continue indefinitely until DOJ could evaluate its “utility and efficacy.”[27] In the meantime, Blanco assured that the program would “continue in full force until we reach a final decision.”[28] Since 2010, there has been an increase in FCPA declinations, and 2016 saw the highest number.[29] Under the pilot program specifically, the DOJ has issued five declinations.[30] It remains to be seen whether, with Sessions at the helm of the DOJ, the ongoing period of evaluation could result in the program being canceled or scaled back. On April 20, 2017, McFadden spoke of the pilot program as an “example of an effort to provide more transparency and consistency for our corporate resolutions,” and added that the DOJ will “consider how we can most effectively motivate companies and individuals to voluntarily comply with the law and how we can appropriately communicate our prosecutorial priorities and expectations to parties subject to the FCPA.”[31] It is worth remembering that the SEC and DOJ maintain overlapping jurisdiction over FCPA enforcement, and cooperation on investigations is common. While the SEC is not technically subject to the pilot program, for the three DOJ declinations that involved companies subject to SEC jurisdiction, the SEC sought
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