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Perspectives on Corporate Criminal Enforcement Under the Biden Administration

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Perspectives on Corporate Criminal Enforcement Under the Biden Administration

From very experienced former federal prosecutors, participants will learn how and why corporate criminal enforcement is investigated, prosecuted, and resolved by the U.S. Department of Justice and federal law enforcement agencies. Participants will also learn the latest “carrots and sticks” approach to corporate criminal enforcement, future enforcement areas, and potential outcomes, along with practical suggestions about when and why to associate with outside counsel and proactive measures to consider taking to lessen the risk profile of businesses in today’s enforcement environment.

Transcript

- [Michael] So, good morning, everybody. I'm Michael Clark, and with me is Luke Cass. We're with the law firm of Womble Bond Dickinson. And Luke is going to be presenting along with me. We've broken it up so that we will go back and forth on some slides, you'll get a little bit of vocal variety. And then we're going to be talking about broad topics. We're gonna review current and past DOJ policies on corporate criminal enforcement, analyze a three-year view on corporate resolutions. We'll be discussing the rise of RICO in white-collar prosecutions, and we'll explain if you're not already aware of what RICO is. It's the statute that's the racketeering and corrupt organizations. And then we'll discuss takeaways and potential outcomes and analyze potential future enforcement areas. And Luke and I will be going back and forth not only on the slides, but also a little bit of a back and forth discussion to make it a little bit more interactive and interesting. And we'll be quickly telling you a little bit about ourselves and why our perspectives are potentially helpful and useful. I'm now in my 40th year of practicing law. I am, I believe, by all measures an accomplished litigator, brought well over 100 jury trials. I teach trial skills. I've had experience in state and federal court, civil, administrative and criminal. I have a substantial amount of appellate experience as well while in government and in private practice in government. I was the head of the Criminal Division for the U.S. Attorney's Office in the Southern District of Texas, which is headquartered in Houston. It's the fourth largest in the country. And I, before that, was a chief of the Financial Institution's Fraud Division, and became that when we were going through the savings and loans crisis, where I pretty much cut my teeth on complex fraud cases. And since then, I've been in private practice handling a variety of cases ranging anywhere from defending companies in tort litigation to defending individuals in federal criminal cases, defending in False Claims Act investigations and cases. I advise on compliance, crisis management, corporate governance, and represent clients in internal investigations. I'm a past chair of the American Bar's Health Law Section, and I was a committee chair in the White Collar Crimes Committee of the Business Law Section. I have also been on the ABA-wide Standing Committee on Publication Oversight, and currently am sitting on the Advisory Board for the American Bar's Specialization Committee looking into board certification issues. I've been an adjunct law professor for the University of Houston Law Center, teaching a number of courses. I've also been a adjunct professor for the University of Florida College of Pharmacy on Pharmaceutical Fraud and Abuse. I've been a faculty member for the National Institute of Trial Advocacy for 25, 30 years, teaching deposition skills, teaching trial skills. I'm extensively published and have a treatise that BNA published on pharmaceutical law and lots of law articles that I've had written. I've spoken for a long time to various audiences. And you know, I've had the requisite type of recognitions, Best Lawyer, Super Lawyers, and those types of honors. Turn it over to my colleague, Luke Cass to tell you a little bit about Luke. - [Luke] Thank you, Michael. And thank you to Quimbee for hosting us for this very timely discussion on corporate criminal enforcement. I'm a partner at Womble Bond Dickinson in Washington, D.C., and I'm a member of the firm's White-Collar Defense, Investigations and Regulatory Enforcement Practice Group. I'm a former federal prosecutor for over a decade first as an assistant US attorney in the Financial Fraud and Corruption Section of the US Attorney's Office in San Juan, Puerto Rico, and then later as a federal prosecutor with the Public Integrity Section at Main Justice in the Criminal Division. I'm a former federal law clerk out of the Eastern District of New York, and I also am an adjunct professor at Georgetown University Law Center, where I teach white-collar crime and securities fraud. So with those introductions, let's get into the material, starting with principles of federal prosecution of business organizations. These are considerations which are contained in what is called the Justice Manual. You will at the cites there, JM, which is available online for all prosecutors and the public to review. These don't confer any rights to anyone, but they're intended to set forth DOJ policies on all different areas and guidance prosecutors are to consider in making charging decisions, including the federal prosecution of business organizations. And these provisions require, among other things, for prosecutors to focus on individual wrongdoing from the beginning of any corporate misconduct investigation. The thinking being that offers the best general deterrent for these types of offenses. It also cautions prosecutors not to treat corporate defendants any more leniently or harshly because of their artificial nature. It states that prosecuting a business organization, whether a corporation, an LLC or a partnership is not a substitute for individual prosecution, and resolution should not be tied to any individual protection. Lastly, corporate charges may be appropriate even for minor offense conduct, where there has been a history of wrongdoing or condemnation by upper management. And it does not have to be criminal conduct. It can be civil, it can be regulatory, and there's no time limitation on that. And while these are general guidelines for consideration, there's also specific factors that go into the charging decision itself. These are things like the nature and seriousness of the offense, the pervasiveness of wrongdoing within a corporation, the history of similar conduct, the willingness to cooperate, the adequacy of the compliance program at the time of the offense. And that's taken on heightened importance as Michael and I will discuss throughout this presentation. Remedial actions, the adequacy of remedies, timely and voluntary disclosure, as well as a number of other important and relevant factors. - [Michael] So there's been a evolution of internal policies within the US Department of Justice, and we're gonna talk about some of this. And some of this is related to the direction of the administration that is in control of the Department of Justice. There's been a number of recent changes that have been made by the Biden administration's Department of Justice versus the Trump administration's Department of Justice versus the Obama administration's Department of Justice. And going back to beyond that, to the Bush administration and Clinton administration and back to the Bush administration. Just to give you a perspective on these policies, in 1991 on its own initiative, the U.S. Sentencing Commission which is an independent body that was created by Congress in the, basically in the early 1980s to provide objective measurements to federal courts on appropriate sentences created what was then kind of a surprise. It was the organizational sentencing guidelines. And in recognition of the fact that organizations, unlike people cannot be imprisoned, came up with what a lot of people euphemistically call the carrot and stick approach to addressing corporate conduct. The whole emphasis here is to try to turn companies that could otherwise be lawbreakers into good corporate citizens by giving them some carrots, meaning some incentives, and then sticks, meaning some measures of punishment if they don't behave themselves. And to some extent, this has been a big change in corporate governance because now you have the federal government, which is historically a limited power inserting itself more and more granularly into the operation of corporate entities, which traditionally, regulation of entities is a state law province. So not going into excruciating detail about this, when the Deputy Attorney General Sally Yates was in charge of this issue, she sent out a memo in September of 2015. Here's the cover page shown up on slide six talking about individual accountability for corporate wrongdoing. And the goal here in 2015 was to ensure that federal prosecutors looked carefully at individuals as they were making a decision on whether or not to charge or not charge corporate entities for wrongdoing. And the concern here had been that in the late 2000s with the large problems that became known about Wall Street and banks and some of the activities that had happened and caused the Great Recession, there was a lot of complaint being made that the Department of Justice was allowing these entities to essentially buy their way out of criminal prosecutions and obtaining not only, you know, deferred prosecution agreements or non-prosecution agreements or very minimal punishment, but more importantly, there really weren't that many prosecutions of key individuals in these institutions that occurred. And so the optics of what happened there, although the companies paid lots and lots of money to make these cases go away, it was of great concern that the Department was being criticized because there really weren't the criminal prosecutions of bankers that a lot of people felt was necessary, and so that was the emphasis here. Going back to my experience as a federal prosecutor in the late '80s and early '90s, having been at ground zero in Texas when the savings and loan crisis debacle occurred, there was a little bit of difference there in the sense that with the bank failures that we encountered, we really didn't have a situation to go after, if you would, the banks themselves, because they were essentially dead and taken over by the federal government, and that focused us on the individuals primarily. And there were a lot of prosecutions and successful prosecutions of bankers who had committed bank fraud. But you compare that to what happened in the late 2000s and there were just a handful, and those handful were largely unsuccessful prosecutions. So that's kind of the genesis of the Sally Yates Memo. Let me stop there for a second and ask Luke if you want to put a finer point on the Yates Memo and the direction that she had provided to line prosecutors. - [Luke] No, I think you summarized it very well, Michael. I could talk a little bit about the Rosenstein edits and then kick it back to you for Monaco, if that works. - [Michael] Yeah, why don't you do that. That would be helpful. - [Luke] Sure, so it changed a little bit. There's not too much difference between Yates and the Monaco memos as we'll discuss. But Rosenstein was a little bit of a departure. The Deputy Attorney General at that time, Rod Rosenstein offered a policy that shifted away from the sort of all-or-nothing approach that was in the Yates Memo and that sort of view of cooperation. DOJ prosecutors could offer more discretion, offer partial cooperation credit, so long as companies quote unquote, "Meaningfully assist in the government's investigation." So if they were unable to identify all relevant individuals or present complete factual information despite good-faith efforts to cooperate fully, they could still be eligible for cooperation credit. And they need only identify individuals that were quote unquote, "Substantially involved in or responsible for the conduct." And there was also a policy shift under Deputy Attorney General Rosenstein to consider the totality of fines, penalties, and forfeiture imposed by all DOJ components as well as law enforcement partners and regulators not just domestically, but internationally. So you could achieve just a one sort of bundled result at the end and not have to deal with all these different entities. And it was aimed at making corporate resolutions a little bit more efficient and a little bit more quicker. And that was, I think that was applauded, Michael, would you agree, by a lot of the defense bar. I think they appreciated those specific aspects of it. But as we'll see in a moment here when Michael goes through the Monaco Memo, that sort of shifted back to the Yates stance where it's- - [Michael] Yeah, and thank you, Luke. I think the historical context is important because, you know, I mentioned to you about the carrots and sticks that the Sentencing Commission created in the sentencing guidelines, the organizational sentencing guidelines. And so companies that have undertaken compliance measures and have gone a little bit further get credit in the calculation of their exposure if convicted. And if they haven't done these things and they haven't cooperated with the government, then they get dinged in the sentencing. And the dings that they get are greater fines because again, you can't put a company in prison. There is actually a corporate death penalty that can be enacted, but that has really not happened. You know, the best example that spurred a lot of the changes had to do with the fallout in Enron and the prosecution of Arthur Andersen which was once the gold standard for large accounting firms. And essentially the DOJ killed it in its prosecution, and then it got an appeal up to the Supreme Court, which found that it would've been... The convictions couldn't stand, but by that time it was dead. Now, the other thing that happened, just as a kind of historical aside here that was critically important, the principles of prosecution of entities really kind of developed under Eric Holder with the Clinton administration. And then it progressed to be very, very tight in another iteration with Larry Thompson, who was the Deputy Attorney General. And it got a lot of criticism by the bar and even by the courts because the DOJ was in its edict to cooperate imposing, essentially, if you don't turn over your work product and turn over, you know, all your information, internal investigation information, we're not gonna give you cooperation credit. And, you know, the essential issue of cooperation is, you know, go and turn everything over and, you know, that's what we expect. And then it went one step further in the prosecution of KPMG and the government, the DOJ took the position that you should not be as a company advancing legal fees to individuals' counsel that are key employees of a company that we have charged. We find that to be repugnant, and we will find that is not cooperation. And ultimately that ended up with a scathing opinion out of the Southern District of New York that the Second Circuit looked at and agreed with that that interfered with the Sixth Amendment right to counsel. So just again, the context here that you'd need to understand if you don't already is that these internal guidances have been designed to exert tremendous pressure on businesses. And so we are going kind of back and forth, if you would, on a continuum, and now with the Biden administration, they're tightening up yet again. And that brings us up to the Lisa Monaco memo, and she is the current Deputy Attorney General and an alumni of the Enron Task Force. And she has given pronouncements in speeches to organized bar organizations, and then in September of 2022 issued the further revisions to the corporate enforcement policies, which is now being called the Monaco Memo. And that's really kind of the historical context of where we have been evolving in the policies, and what Lisa Monaco has said, essentially, we'll get into the next slide. I think you're gonna take this one, aren't you, Luke? But she has said essentially that cooperation, again, as Luke had alluded, is following what Yates had done. And looking again at making sure that individuals are carefully examined for prosecution. It's not a, prosecute the company and the individuals get let go. And so there's almost a presumption that key individuals will have to be carefully evaluated for prosecution, but there's more. Why don't we go to the next slide, Luke? - [Luke] And Michael, before I move to the next one, you raised a really important point about the privileges, and the DOJ requirements are for all non-privileged information about individual involvement, but how that often plays out is very, very different, and the Justice Manual is clear. You don't need to waive attorney-client or work product protections. That's never been a prerequisite in order to get cooperation credit. But in reality, you know, cooperation often will require, if not in a literal sense in a practical sense, business entities getting into that aspect of a particular waiver, and there's no recognized selective waiver, the attorney-client privilege, except for I think the Eighth Circuit. Correct me if I'm wrong, Michael, on that, but most courts hold you. It's a full steam approach. You either waive it or you don't. And those are very hard decisions to make with the advice of counsel. And we've heard a lot of rhetoric about, we won't shy away, we won't be afraid to lose. So it is exerting tremendous amount of pressure, as Michael has said. Michael, any comments on that before we move on to the next one? - [Michael] Well, yeah, I think if you look at the case jurisprudence on privileges and privilege waivers, it's important to know that there really is no great protection once you've waived it even under coercion to the DOJ or other federal agencies. As a practical matter, there's gonna be a broad privilege waiver problem, even if the DOJ agrees that this was done as part of cooperation. And as you probably already also know, when you're talking about companies being charged criminally, you're also looking at, oftentimes, shareholder derivative actions and related civil suits by plaintiff's counsel, oftentimes in class actions seeking damages. And so the idea of being able to get your hands on things that otherwise would be privileged is a very important consideration for plaintiff's lawyers. And they've had great success in the federal courts other than in the Eighth Circuit in a case called Diversified versus Meredith. The courts generally are of the opinion that selective waiver is invalid in the federal system. That's an important consideration. The other thing that the DOJ has done in trying to give some relief in that regard is looking at the idea of what is work product, and work product has two components. One is fact work product and the other is what's known as core or opinion work product. The DOJ recognizes this issue and is not calling for the opinion work product unless there's a real demonstrative need. So there has been a bit of an evolution in that regard and there's very granular pronouncements about what is fact work product that's provided in these memos to the DOJ line attorneys. - [Luke] So I mentioned these earlier. These are the corporate charging factors. In every financial fraud investigation, the federal prosecutor will come to a fork in the road and have to decide, do we charge the company or do we not charge the company? And these are the factors that will go into that decision. The nature and seriousness of the offense, the pervasiveness of the wrongdoing, history of similar conduct. Deputy Attorney General Monaco has actually specifically referenced this particular factor and has said, "If a company has had multiple prior resolutions with the Department, are they really a candidate for a deferred prosecution agreement or a non-prosecution agreement, or should they be required to plead guilty?" The willingness to cooperate, which we've discussed and the adequacy of the compliance program has taken on renewed importance as probably one of the most important factors under the current administration as well as the timely and voluntary disclosure of wrongdoing. They're seeking voluntary disclosure, not just cooperation. They want to hear from the company in the first instance about the alleged wrongdoing. And then these other factors that'll inform not only the charging decisions, but the type of resolution for a particular company. And monitorships, of course, is another tool in the toolbox that has taken on renewed significance. - [Michael] So Monitorship is essentially bringing in an independent third party to oversee the entity's compliance with the federal laws. And it is an expensive undertaking. It is also disruptive as an undertaking to a company, and there's been criticism about the DOJs selection of corporate monitors that it had been turned into kind of a good old boy network for former high-ranking DOJ officials and fairly lucrative. And so there's been pressure put on the Department of Justice over time about, these monitorships shouldn't be used as just essentially a check-the-box requirement. Rather, they should be evaluated in terms of, is it really necessary? And in looking at that, you know, things like, well, if the company has negotiated peace, then what did the company have in the way of a compliance program to start with? Oftentimes as part of a settlement, a company has to implement what I call a compliance plan on steroids, which is essentially the Department of Justice's compliance plan that has a lot of metrics to it, but you know, the next step is, if there is a pervasive culture of non-compliance and it involved high-ranking individuals in an entity, then there was this memorandum issued internally called the Morford Memorandum. We have a link in the slides to the Morford Memorandum, and it talks about, monitors should be used only where appropriate after analyzing the potential benefits to a company and the cost of the monitor on operations. And historically going back into the Trump administration, another name here internally in the DOJ was Benczkowski, and there was the Benczkowski iteration of this corporate monitor policy. And that looked at whether the misconduct involved manipulating corporate books, records, whether it was pervasive, whether it had made investments in and improvements to its compliance program and whether there was testing to demonstrate prevention and so on and so forth. So now we have a standing committee on selecting monitors that has internal reviews and recommendations and approval by high-ranking DOJ officials. And then in Lisa Monaco's recent memorandum, she wrote that every component of the DOJ that's involved in corporate criminal resolutions that does not currently have a public monitor selection process must adopt an already existing DOJ process or develop and publish its own selection process before the end of this year. So this is another important area because under Monaco's memo, the shifting back now appears to be that more likely than not, there's gonna be a hard look as to whether or not a monitor is necessary with probably a presumption that they may be necessary. I don't know if you agree with that assessment or not, Luke. - [Luke] Yeah, I think that's right. It's also important to emphasize the burden this places on companies. I mean, after a long investigation with DOJ, there's another three-year period after the agreement is signed in which this monitor is embedded, reporting back to DOJ, involved in operations, performing controls, checks, performing audits. So it really is an onerous burden, don't you agree, Michael? - [Michael] Yeah, and you know, with corporate operations, the DOJ is not really suited to run companies. And you know, if you look at the corporate monitors, they are essentially running a company. And the problem is that for a company to operate and return value to its shareholders, they have to take certain risk. And that's just the nature of corporate operations is risk-taking, and when you have a monitor that is kind of running the show, it can be a real drag on a company's operation. So fine tuning this is, it's not a black and white issue. It's shades of gray and it is a real drag and it's very costly and it's incredibly disruptive. - [Luke] And the sophistication of the Fraud Section, which is the litigating component that does a lot of these corporate resolutions in addition to the US attorney's offices around the country has gotten a lot of experience recently with compliance policies. The new incoming chief Glenn Leon is a former in-house compliance officer at Hewlett Packard. They have a Corporate Enforcement, Compliance, and Policy Unit, CECP, that has a number of different folks that have in-house expertise at DOJ in compliance and monitorships. They also recently hired a data analytics expert in that particular unit who was formerly a global compliance chief. So they have significant resources with experience in this area that will come to bear on future resolutions to be sure. - [Michael] I think it's back to you now, Luke. - [Luke] Yep. On the Monaco Corporate Enforcement. So these are the takeaways for companies' need to actively review their compliance programs to ensure that they adequately monitor for and remediate misconduct. They will review their whole criminal, civil and regulatory record, not just a sliver of that record. They can go back a number of years. We're talking about environmental regulatory resolutions, state resolutions, resolutions with foreign governments. All of that can be considered by DOJ now in assessing the appropriate resolution. Companies cooperating with the government need to identify all individuals involved in the misconduct, not just those substantially involved. So again, moving away from Deputy Attorney General Rosenstein's guidance back to Deputy Attorney General Yates's as Michael described. And they have to produce all non-privileged information about their involvement. And there's no default presumption against corporate monitors. It's a case-by-case determination in accordance with the factors that Michael mentioned. And this is the quote from, this is from Deputy Attorney General Monaco. "Some have questioned whether pretrial diversion is appropriate for any company who has benefited previously from such an arrangement." So again, very tough rhetoric on this. So individual accountability and history of misconduct are two key factors. I think the individual accountability is probably the primary as well as the history of misconduct. That's also important. Independent compliance monitors, we've seen them appointed in Balfour Beatty and NatWest, in Stericycle. There was also a recent case which involved a French cement manufacturer named Lafarge, who actually pled guilty to providing material support to terrorism. No monitor imposed in that case. I described the various buttressing of experience in compliance and data analytics at DOJ now. Very sophisticated unit and also there is a Corporate Crime Advisory Group that reports directly to Deputy Attorney General Monaco's team in this respect. And there's also an increased role for compliance officers. One of the new provisions will be a certification requirement on the plea agreement itself. So not only will the CEO have to sign for a corporate resolution for a particular company, but the chief compliance officer will also have to sign, attesting that the compliance program is adequate, that it's been tested, and that there's no concerns about that. And that presents some significant concerns for those chief compliance officers in a number of different respects. You're making a statement under oath. There are criminal penalties associated with that under 1001. And Michael and I have have grappled with this in the last few weeks about whether they should have outside council, who's covering that. I think people are gonna be very reluctant to sign onto that without a full view of the facts. Michael, do you wanna chime in on that one? - [Michael] Yeah, we're actually writing a paper that we're going to try to get published about this issue. And those of you all that are familiar with the types of insurance products that are available to companies dealing with investigations and or potential charges brought are familiar with the language can be very, very difficult. What is a claim under the policy definition? Who is covered? One of the issues that you look at is, if it follows Delaware law, which is kind of the gold standard for companies, is the advancement of legal fees mandatory or is it discretionary? And so there are real concerns here if I was advising a CEO or a chief compliance officer called upon to certify under penalties of perjury that they need to make absolutely sure when they sign this, that what they're signing is with knowledge because otherwise the knowledge will be assumed exhibit A of a potential prosecution or some administrative action is going to be, here's your signature, and as it turned out it wasn't compliant. And you know, the question then becomes, how do you prove that you adequately tested it before you signed? Do you have aligned interest with the entity itself? I believe, and Luke, I think, and I have talked about this, that individuals in those situations would be well served to go to the company, look at the policies and if necessary have a frank discussion about coverage issues because they need to have independent counsel to consult with and advise them. And if things go to hell in a hand basket, as long as there's been full disclosure to outside counsel, then you have essentially the hallmarks of documentation and a good-faith defense. Of course, you have to waive your attorney-client privilege, potentially, and that also looks at whether or not there was full disclosure made. It's not perfect, but at least it gives some degree of added protection because why is the government asking for these certifications? If you look at what happened in the aftermath of Sarbanes-Oxley and Dodd-Frank reform legislations, there were calls made that were implemented for reporting agencies under the securities laws to have certain individuals certifying adequacy of books and records and things of that nature. And there have been administrative actions taken by FINRA against compliance officers and others who have made these certifications. So if history is gonna repeat itself, and I fear that it might, then I do believe that outside council being available to these key people that are having to certify would be very, very beneficial. - [Luke] Yeah, it's an important, important point. And at a recent conference, someone asked a Fraud Section official about this specific aspect of the new policies, the corporate compliance certification, and the response was, "Oh, it's meant to empower chief compliance officers and give them a voice in the process." And the response by one of the members of the defense bar was, "I think you can empower them without hanging a felony over their head." So it's a very tricky aspect of it and I think one that'll be litigated for some time to come not only as part of the resolutions maybe, but with the bar as well. In terms of the training and history, not all instances of prior misconduct are created equal. DOJ stated dated conduct will generally be accorded less weight. So that means criminal resolutions that occurred more than 10 years before the conduct currently under investigation and civil and or regulatory resolutions that took place more than five years before the current conduct. And they consider the nature and circumstances of the prior misconduct, including whether it shared the same or root cause as the present misconduct. And they have said they're not gonna treat recidivists with a proven track record of compliance that acquire companies with a history of compliance problems the same way. It's all how you address the issues post-acquisition. But my general takeaway from this is, it's very aggressive rhetoric to be sure. Obviously this is a top priority for this administration. For many companies, this is not gonna be a choice when it comes to cooperation. They're gonna believe it's in their interest to do so and will cooperate. For others, that may not be as true. It's in everyone's interest for cooperation to be incentivized. You want companies to come forward as soon as they learn about something. Certainly many of the types of cases could not and would not be made absent that cooperation, but I fear that overly aggressive rhetoric could dissuade certain companies from doing that. You don't want to make cooperation as arduous as fighting the case on the merits. And I think some companies, Michael, tell me if you disagree with this, will do their own cost versus benefit analysis and maybe choose not to cooperate under these these strict circumstances. - [Michael] Yeah, I think that, you know, my general takeaway is that, is the rhetoric going to be rhetoric or is it going to result in, you know, more aggressive actions? I think that walking in representing our company, it won't be as easy to get to where you want it to be as it has been in the past, but it remains to be seen. At some point in time if the government makes it too onerous, then you end up going to trial. - [Luke] Right. - [Michael] So I had kind of talked a little bit about the organizational guidelines and the carrot and sticks approach, and this is, we're at slide 13, but one of the problems that's developed over the years is that despite adhering to the guidance and the guidelines about, you know, what has to be done to be a compliant organization, there's a bit of a hindsight bias problem here. If I'm talking to a Department of Justice criminal attorney and trying to convince them that we had an adequate, a compliance program in place and that, you know, this was something that wasn't predictable and that there were rogue employees who weren't obeying by our strict guidelines, then it does, you know, the question, the pregnant question that you can envision being asked is, well, if you did such a great job, why are we here investigating the company for having engaged in criminal conduct? And you all recognize, I believe, that a company being an artificial entity has to act through various and key individuals that are in positions to bind the company. And so traditionally courts have looked and the Department has looked at such things as, how high up in the food chain was this individual? And did the company ostensibly benefit by the conduct? There have been some crazy cases out there that have been published. One out of the Ninth Circuit that comes to mind essentially found that a company was liable even though the individual was acting against the company's express policy and found, well, they were high ranking and arguably the company benefited even though, you know, the employee was way up there and was self-dealing and hurt the company. So this is the hindsight bias problem. How do you show that compliance worked correctly? If you're a large enough company, you know, like a multinational company with multiple operating divisions around the world, some of which that are operating in high-risk areas, particularly for purposes of the Foreign Corrupt Practices Act, how do you ensure, can you ensure that the measures that you're putting into place are actually functioning correctly? And you know, you have to then not only look at your employees, but you have to look at third-party vendors, you have to look at independent contractors so it is not an easy task. If we could go to the next slide, Luke. So this is the hindsight bias problem that I was mentioning. We're looking at slide 14. And this is based upon the Justice Manual section that's in the lower right-hand corner, JM 9-28.800. If you Google U.S. Department of Justice Justice Manual, you can find this, but here are the factors that the DOJ has now provided in giving guidance to what they consider to be an effective compliance program. Is it well designed? Well, what does that mean? Well, does it mean that everything has to be the same in a cookie cutter fashion? No, there are some core principles that have to be in there and those are set out in the US Sentencing Commission's Organizational Guidelines, these so-called seven basic factors. But DOJ has added to this. Is there a risk-based and integrated process in place for the compliance? What controls are in place? Are they adequate? What relationships are there and how are they being managed? If the company is essentially putting a compliance plan on the shelf and not implementing it, then that's problematic. If there are people that do get punished, how high ranking are there? Is there disparities in who's getting punished? If it involved, you know, somebody high up in the food chain and they get a pass it's looked at with great scrutiny and displeasure. Is the compliance program being applied in good faith? Is it funded correctly, adequately? Have they walked the talk, so to speak? Is there commitment and buy-in by senior and middle management? What incentives are there to be more compliant? What disincentives are there? You know, for example, is there a hotline where people can report their concerns independently? Is it something where the people that are whistleblowers are in fear of retaliation, and if so, why? And if there is retaliation taken, what is the company doing to respond to that? So this is part of what is the compliance program being applied in good faith test. And it's not a static thing. It has to be improved in the government's eyes. Of course there has to be some scalability. You know, what may be good for a multinational company that has billions in assets differs substantially from a small family owned and operated company. Is it publicly traded versus private? And you know, when misconduct occurs, it's a issue that can be a little bit difficult in investigating if the government wants companies to investigate and remediate the problems, but practically speaking, you have to be careful not to do anything that would jeopardize or anger the US Department of Justice and its agencies that are conducting the investigation. So there has to be some dialogue with DOJ, and it's sometimes very difficult to do an internal investigation that's reactive in nature when the government really isn't telling you what the problem is, and so to properly remediate, you gotta know what you're remediating and why. And Luke and I have talked about sometimes the Department of Justice lawyers are just not very forthcoming about what their focus is, particularly in the context of situations where I've been involved in where a search warrant has been executed, for example. We know when there's a search warrant executed that a couple things have happened. One is that a agent and assistant, a US attorney or a DOJ lawyer have had to go in front of a federal magistrate judge and talk about the investigation. The agent will have a search warrant affidavit that is reviewed and prepared oftentimes in conjunction with the DOJ attorney, and the agent has to swear under oath that a crime was committed and they think that they're gonna find the evidence of the crime at the location being searched. That affidavit is sealed, routinely, so it's not public knowledge. The only thing that the company knows at some point in time is that a bunch of agents in flak jackets show up, take a lot of records away, and then there's a kind of a generic search warrant return document that's provided that tells you what they've taken. And so from there, that's what we call a reactive internal investigation. You gotta figure out what's happened, why it's happened, and if you cannot coordinate with the government, and oftentimes it's just not happening, at least not early, the remediation can be really problematic. And so with that, Luke, I'll turn it back over to you. - [Luke] Thanks, Michael. So voluntary self-disclosure versus cooperation. This is an excerpt on slide 15 here, footnote six from the Monaco Memo. "Voluntary self-disclosure of misconduct is distinct from cooperation with the government's investigation, and prosecutors should thus consider these factors separately." And this is probably the biggest carrot that has been discussed thus far. DOJ has described voluntary self-disclosure as quote, "The clearest path for a company to avoid a guilty plea or an indictment." And the goal here is to reward those companies whose historical investments in compliance enable voluntary self-disclosure and incentivize other companies to make the same investments going forward. And DOJ has a number of voluntary self-disclosure programs. They have the Antitrust Division's Leniency Program. There's also a voluntary disclosure program specific to foreign corrupt practices or FCPA violations. And the National Security Division also has a voluntary self-disclosure program for export control and sanctions violations. So they want folks, when they find some sort of misconduct to be the first one in the door and telling DOJ about it. And there's clear expectations of what that entails as well as concrete benefits to companies that choose to choose this route. According to the Deputy Attorney General, she has said the DOJ will not seek a guilty plea when absent any aggravating factors, and that's a big exception, a company has voluntarily self-disclosed, cooperated, and remediated misconduct, and they will not require an independent compliance monitor if at the time of the resolution it's implemented and a tested and effective program. So this is a value proposition for corporate America to make a voluntary self-disclosure option to save, you know, potentially millions of dollars in fines to go this route. But I think you need to think long and hard about this, and it has to occur very early on in order you to receive the full benefits of it. Wouldn't you agree, Michael? - [Michael] Yeah, and you know, the other piece of this puzzle, which is not on the slides, is that you're typically dealing also with another one of these alphabet agencies, for example, the Securities Exchange Commission or the Commodity Futures Trading Commission. And they have created similar type of procedures in place and standards for self-disclosure to address for purposes of any civil or administrative sanctions. So these things happen in tandem. Oftentimes you're not only talking to, for example, a DOJ attorney, you're also talking to a attorney with the Securities Exchange Commission. And there's a lot more coordination going on, particularly in corporate investigations in that regard. - [Luke] So I thought we'd take a three-year look at corporate resolutions beginning in 2019. Michael, do you want to start with this one? - [Michael] Yeah, so we've had a couple of, you know, kind of what used to be eye-popping when you start getting into the billions of dollars. To me that used to be breathtaking, but that became far more common it seems, unfortunately. So if we look at, for example, in the context of the Foreign Corrupt Practices Act, FCPA, you know, we've had corporate resolutions involving seven and you know, with the FCPA, there's a lot of emphasis there. The total global monetary amounts of over 3.2 billion, total US monetary amounts of almost 3 billion and total US monetary amounts criminally of over 1.9, almost 2 billion. So MIMF, Luke, that's the acronym, help me with that, I'm- - [Luke] It's Market Integrity and Major Frauds. It used to be the Securities Fraud Section. - [Michael] Yeah, thank you. Again, you know, these numbers aren't as high, but oftentimes when we're talking about these resolutions, they're wrapped up together. And as you can see, these have been in the high 300 millions in this period of time in 2019. Let's look at the next slide and we'll blow through these quickly. - [Luke] Sure, 2020 Was 13 corporate resolutions. And this is just the Fraud Section, by the way. This doesn't take into account resolutions by the various US attorney's offices around the country. Eight of those were FCPA cases and five of those involved market integrity or market manipulation cases. Total global monetary amounts were 8.9 billion. It's an increase, and 4.4 billion for the US, and US criminal monetary were 2.9 billion. By and large, most of that was in Foreign Corrupt Practices Act cases. But again, staggering numbers here, Michael, $7.84 billion in 2020. - [Michael] And then more recently in 2021, you know, we have to kind of put some of this into context. We did have the pandemic, and that did affect the operations of law enforcement and slowed things down. But in 2021, three corporate resolutions involving the Foreign Corrupt Practices Act and six involving MIMF activities. And again, you know, they're very high, 3.3 billion in total global monetary amounts. US aspect over 3 billion and total criminal, almost 3 billion. And most of it, again, is in FCPA resolutions. - [Luke] The Deputy Attorney General as well as the chief of the Fraud Section recently said that there has been a 10-year downturn on corporate resolutions so they need to do more faster. So look for these numbers to increase. I think 2022, they're on track for five corporate resolutions from the Fraud Section. So, you know, trying to get back up there, but I think there's still some, they said there's some resolutions forthcoming towards the end of the year, beginning of next year as well. So let's talk for a moment about RICO in white-collar prosecutions. RICO is the Racketeering Influenced Corrupt Organizations Act. It was traditionally used for organized crime matters, specifically in LCN or La Costa Nostra cases. It will allow you to bring state offenses in federal court if you could establish an enterprise in what's called a pattern of racketeering activity. So that was the context. So it was traditionally used. It goes back to when Robert F. Kennedy was the Attorney General of the United States and was always used in that manner. In the '80s they used it against some insider traders, but by and large it has not been used against white-collar criminals until now. And this is a recent case out of the Northern District of Illinois in Chicago in which four JPMorgan Chase employees were charged for RICO. They helmed the precious metals trading desk and the charges there involved what's called spoofing, which is a commodities fraud offense under the Commodities Exchange Act. And if you have the intent to cancel a trade at the time it's placed, that is a felony because you're artificially manipulating market prices and profiting off of that or you can profit off of that. So they charged them with a number of spoofing offenses in addition to wire fraud offenses and bank fraud offenses as well as this RICO offense. And I think it's because they had sort of a rocky start into a lot of these spoofing cases. There was an acquittal in one of the first cases in Connecticut, it was dismissed. So I think they wanted to sort of come in with a cudgel on this using RICO. Jury ended up convicting, of the traditional white-collar offenses, the spoofing and fraud offenses that I described, but acquitted of the RICO counts. And Michael, what's your takeaway on that acquittal? Can we read anything into that? - [Michael] Well, I think that the concern obviously is racketeering is a very, very onerous statute and jurors, I think, can see sometimes of what we call overcharging that, you know, you bring the full monty, so to speak and it better be proportionate. So when they find that the government has gone too far and the defense does a good job, then it's kind of a vote about the approach that was taken. And that's the read that I get. RICO is such a blunt instrument. In civil RICO actions, the federal courts have really stepped in to try to reign in, if you would, the overuse of that statute and DOJ has procedures in place that has to have high-level review of the appropriateness of using RICO. And I think the movement into RICO needs to be far more selective in white-collar cases. But you know, that's just my editorialization, frankly. - [Luke] I think that's right. - [Michael] So the case that we're looking at now out of the Southern District of New York in the Hwang et al case, a CFO and founder of a private investment firm got charged with racketeering, conspiracy, securities fraud, wire fraud as to schemes that allegedly were to unlawfully manipulate prices of publicly traded securities and the company's portfolio thereby defrauding leading banks and brokerage houses. And the allegations that were made are set out in the slide here. The allegations of lying to banks to get billions of dollars than pumping the stock price by publicly traded companies fed inflation and inflation led to more lies and on and on it went and turned a $1.5 billion portfolio, pumped it up to 35 billion and then the bubble burst, prices dropped, and billions of capital eviscerated. This is the kind of stuff that I see in private securities fraud class action litigation, this type of rhetoric, but not often do I see it quite as hyperbolic as it is right here. - [Luke] We actually wrote an article on the overexpansion of RICO in white-collar cases. There's a link in the slides here that talks about, what is RICO, why charge in the white-collar context? I think there's more disadvantages. I agree with Michael's take on this to advantages. It's very complicated jury instructions when you're doing a RICO case. When I've had the opportunity to do it, it was always in the violent crime context and it was only because we couldn't get the, a federal hook to bring in some of the charges. Here when you have federal statutes that have the higher statutory maximum and higher guidelines even, I don't see a real good reason to do it other than to leverage maybe a plea or other other reasons for it. It's sort of curious, I wonder how the acquittal will play out in future cases if they sort of take a note from that jury in Chicago and do away with this or they keep trying to add it in. Will remain to be seen. - [Michael] Yeah, and I've mentioned to you in preparation, Luke, when I was the head of the Criminal Division at the US Attorney's Office, I would have periodically AUSA, assistant US attorneys ask me to approve their charging request to use RICO. And in my four years in that position, I never approved a RICO prosecution because you have other tools that are oftentimes equally powerful that aren't as onerous. Money laundering charges, bank fraud conspiracy, there are lots of other tools that are available that came into fruition after RICO was enacted, and it's a very blunt instrument. So I just think that it shouldn't be used too often. And if it is used too often, then the courts will step in or juries will step in and take away that tool. - [Luke] Right. - [Michael] So finally, we are kind of getting near the end. What are the outcomes in these types of cases? Well, you can oftentimes at the end of the day have a privileged investigation. There's no adverse findings, there's no disclosure obligations. This could be something we could talk about for a long time so we'll have to just kind of leave it there. Reforming your compliance programs, it's always important if your counsel is going to be properly advising you that these are things that are being looked at. Self-reporting obligations can be critical. They can be very granular in different areas and have their own associated risk with self-reporting because once you've gone naked, you've gone naked. There's no going back. Administrative actions on discrete issues. By that, in these parallel proceedings, you have to think in terms of multiple risks. Not only the civil litigation, the administrative enforcement, licensure and criminal obviously is the big concern. You could walk yourself into an agreement for a consent decree for a prolonged period of time. We've talked about civil suits being spurred. And you know, if there's a criminal resolution and it requires admission of wrongdoing, then you have collateral estoppel and res judicata problems for civil actions. We've talked about monitors. We've talked about the criminal charges. Ideally you get declination of criminal charges, and if you can't get that, the next best outcome is a non-prosecution or deferred prosecution agreement, which are essentially going to be public, but don't result in convictions per se. - [Luke] So we thought with our remaining time we'd talk about current and future enforcement areas. Read the tea leaves here and see what's coming on the horizon. The first is Foreign Corrupt Practices Act. We think that this will continue to be a focus area and particularly in Latin America. 2021 was a slow year for FCPA enforcement actions and resolutions. Out of the limited number of resolutions, two of those involved companies operating in South America, specifically in Brazil, which has been an increasingly valuable partner to DOJ. Both were charged with alleged violations of the statute's, anti-bribery books and records and internal control provisions. Both cases involved the alleged payment of bribes. And in the case of one matter, the parent company was accused of failing to promptly and adequately respond to warning signs of corruption or control failures in one of its subsidiaries. In 2020 there were four FCPA actions. Three out of the four were in South America, two in Brazil, and one in Peru. So we believe FCPA enforcement will continue to focus on Central and South America. In addition, recently disclosed FCPA investigations involved companies in the Northern Triangle, which shows a focus on the region. DOJ created an Anticorruption Task Force focused on the Northern Triangle, which is El Salvador, Guatemala, Honduras, and with different representatives from each of the following criminal division components. Of course the FCPA unit of the Fraud Section, the Kleptocracy Asset Recovery Initiative in MLARS, which is the Money Laundering and Asset Recovery Section which is focused on recovering assets linked to foreign corruption and related money laundering schemes. And in terms of resources, there's a Latin America Corruption Task Force in the FBI's office in Miami. And a number of FBI agents have been detailed to the fraud section to work side by side with fraud prosecutors. - [Michael] So, you know, there are other focuses that we know are on the horizon. Antitrust is a high priority under this administration. They've done some kind of land breaking prosecutions on bid rigging and had a little bit of success here in Texas. There are investigations on market allocation, what we call the hardcore antitrust violations that are handled criminally. The idea being that price fixing is a hardcore and market division can be a hardcore. Bid rigging can be a hardcore violation. The coordination is important, particularly in periods of time when the government is running huge deficits to at least give the appearance that corporate collusion is not contributing to inflationary spirals. Going back to what we had seen in the past- - [Luke] Sorry, Michael. - [Michael] No, that's it. The energy manipulation, we saw that in the 2000s. There were a number of prosecutions involving that. It's your slide, Luke, but I certainly remember Enron, represented a defendant in Enron and other companies for energy price manipulation and financial fraud. - [Luke] Yeah, I think the market manipulation offenses are gonna continue to be a high priority, especially the commodities fraud. They've really targeted those spoofing offenses and hired dedicated spoofing prosecutors. They're investigating energy pricing benchmarks, plants. There was a report about that. And I think the data analytics that DOJ has been so keen to discuss will play a big role in this, in these investigations to detect and prosecute these sort of sophisticated market manipulation schemes. - [Michael] And procurement fraud, you know, where the government is purchasing product is critically important. We saw a lot of concerns in the pandemic with the CARES Act and the amount of federal funds that were pushed out to keep businesses afloat. And now with that money comes a lot of emphasis on catching the bad actors. And DOJ announced a Procurement Collusion Strike Force, and the Fraud Section of the DOJs Criminal Division is working with the Antitrust Division and various US attorney's office throughout the nation in areas where they think there's been a lot of procurement fraud or likely procurement fraud. And this is a prominent feature of the activities that DOJ has focused on. - [Luke] We've seen a lot of activity with environmental crimes as well. The Infrastructure Bill invested $21 billion to clean up Superfund and brownfield sites, reclaim abandoned mine land and cap orphaned oil and and gas wells. And this is leading to more environmental crime investigations. The Attorney General has stated that the Department's Environment and Natural Resources Division is quote, "Prioritizing the investigation and prosecution of individuals who commit and profit from corporate environmental malfeasance." The division is currently trying or preparing to try 11 cases against 11 companies and 34 individuals, including 14 current or former company executives for a wide range of criminal environmental offenses so I think you're gonna see more of that to be sure. - [Michael] A lot of emphasis now on the Biden administration with tax enforcement and a lot more resources have been dedicated to ferreting out tax crimes and so I fully expect that this is gonna be an important area, which in some ways I'm well positioned for having a master's in tax law and haven't seen a lot of tax prosecutions in the last decade or so, but I think we're gonna be seeing a lot of this. Luke, I'm gonna have to let you take it to the home stretch here because I've got to meet a group of people now for our office Christmas party. But thank you for allowing me to participate with you and thanks, Quimbee, for having us here. - [Luke] Okay, Michael. Another area likely to be, we're likely to see an increase in will be public corruption offenses. This is my old unit, Public Integrity Section at Main Justice, and the Infrastructure Bill will require companies to interface with local, state, and federal public officials on a number of different issues. And companies should keep in mind to do that cautiously, consistently, be educated about how campaign finance and contribution laws affect these relationships. Even the appearance of impropriety can give rise to investigations, and this is something to include in compliance policies and training, how to interact and best practices for dealing with public officials. I'm sure we'll continue to see a number of those different types of cases, especially as those Infrastructure Bill dollars come flowing into the system. Cyber and virtual currencies, the Department of Justice has appointed a task force for virtual currencies. It's a former prosecutor from the Southern District of New York, and the idea is to have a headquarters for these types of cases at Main Justice so that they could advise the different US attorney's offices on them and enunciate policies that will inform how these cases are handled. This is a very new area for the Department as well as for a lot of different people. Some cybercurrencies are considered securities. Some of them are considered commodities. Some are considered neither. Very tricky, tricky area. And the Deputy Attorney General has also spoken numerous times about government contractors and companies that receive US government grants and they wanna make sure that their cybersecurity practices are up to date and strong and they want them to report hacks or report deficient cybersecurity products if they're doing government contracts or doing business with the federal government. So with that, we thank Quimbee and thank you all for listening. This is our contact information. If you wanna point your phone to these QR codes, it'll give you the contact information, and I'm sure Michael and I would welcome any follow-up or any questions you may have about any of the material that we talked or about anything else you wish to discuss. Happy holidays to everyone.

Presenter(s)

LC
Luke Cass
Partner
Womble Bond Dickinson (US) LLP
MC
Michael Clark
Senior Counsel
Womble Bond Dickinson (US) LLP

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