Insights

On February 10, 2025, President Trump issued an Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (“Trump’s FCPA Order” or the “Order”), whose stated goal is “to restore American competitiveness and security by ordering revised, reasonable enforcement guidelines” for the FCPA. Fact Sheet: President Donald J. Trump Restores American Competitiveness and Security in FCPA Enforcement (“Fact Sheet”). Trump’s FCPA Order is part of his administration’s policy of “eliminating excessive barriers to American commerce abroad.”

On August 1, 2024, Deputy Attorney General Lisa Monaco unveiled the Department of Justice’s new Corporate Whistleblower Awards Pilot Program. The announcement marks the conclusion of the Department’s previously announced “sprint” towards a pilot program, as DAG Lisa Monaco first previewed back in March of this year. 

On Friday, the Department of Justice released an updated version of its Evaluation of Corporate Compliance Programs (“ECCP”) guidance—the latest in a series of updates to the administration’s approach to corporate criminal resolutions, and the first substantive update to the ECCP guidance since June 2020. The update marks the latest pronouncement in the Department’s ongoing focus on corporate compliance programs, highlights a continued emphasis on individual accountability, and in particular, fleshes out its expectations in two key areas—compliance related compensation and consequences, and management of messaging apps—providing corporate leaders and compliance teams with additional detail to guide programmatic and policy decisions.

On July 3, 2020, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released the second edition of their Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”). This new edition provides several clarifications on the enforcement agencies’ view of the FCPA, adds summaries of recent cases and declinations, incorporates DOJ's recently updated guidance on the Evaluation of Corporate Compliance Programs, and addresses other agency policies issued since the first edition including the FCPA Corporate Enforcement Policy and policies on the selection of monitors and the coordination of corporate resolutions. Although the substance of the Guide remains largely unchanged, it does contain several notable edits that give some further insight into DOJ and SEC’s perspective on key developments in the law and enforcement issues under the FCPA since the first edition was published in 2012. While companies’ attention may be elsewhere during the COVID-19 pandemic, they should nevertheless remain vigilant in maintaining and enforcing their anti-bribery and anti-corruption programs. This updated Guide provides additional insights for doing so.

On Monday, June 1, 2020, the Department of Justice’s (DOJ’s) Criminal Division issued an updated version of the “Evaluation of Corporate Compliance Programs” guidance. The guidance was originally published by the Criminal Division’s Fraud Section in February 2017, and last revised in April 2019. The updated guidance emphasizes the need for companies to ensure that their compliance function is sufficiently resourced and empowered to fulfill its mission, and to engage in continuous improvement—evolving as necessary to meet changing circumstances and challenges. The updated guidance also provides practical takeaways on issues related to training, testing, mergers and acquisitions, and the impact of foreign law on a company’s compliance program. Given the unique stressors and challenges that the coronavirus pandemic has created, this updated guidance is a timely reminder for companies to assess whether their compliance program comports with best practices and DOJ’s expectations.

On March 23, 2020, the co-directors of the SEC’s Division of Enforcement, Stephanie Avakian and Steve Peikin, issued an unambiguous warning against insider trading and other illegal practices stemming from the COVID-19 fallout.  In their joint statement, the co-directors explained that “[i]n these dynamic circumstances, corporate insiders are regularly learning new material nonpublic information that may hold an even greater value than under normal circumstances.” Those with such access “should be mindful of their obligations to . . . comply with the prohibitions on illegal securities trading.”

In response to increased reporting of COVID-19-related fraud and misconduct, on March 16, 2020 Attorney General Barr directed all U.S. Attorneys to prioritize the prosecution of wrongdoers seeking to profit from this national crisis. Barr stated in his directive that "[t]he pandemic is dangerous enough without wrongdoers seeking to profit from public panic and this sort of conduct cannot be tolerated." Examples of such conduct include the sale of fake cures for COVID-19, phishing emails posing as the World Health Organization or the Centers for Disease Control and Prevention, and malware being inserted into mobile apps designed to track the spread of the virus.

On November 20, 2019, the U.S. Department of Justice (DOJ) revised its Foreign Corrupt Practices Act Corporate Enforcement Policy (“FCPA Policy”) in a further move to encourage early self-disclosures. The changes make clear that DOJ does not expect a company to hold off on self-disclosure until it conducts a complete investigation that identifies all relevant facts, or until it determines that a violation of law occurred. Instead, DOJ expects companies that self-disclose to report on the relevant facts known at the time of disclosure, and to specify when those disclosures are based only on preliminary investigative efforts. 

On April 30, 2019, the Department of Justice (DOJ) Criminal Division issued an updated version of the “Evaluation of Corporate Compliance Programs” guidance originally published by the Criminal Division’s Fraud Section in February 2017. The update is more of a consolidation of various compliance program evaluation sources under the broader Criminal Division umbrella than a sweeping change in policy or philosophy, but there are some practical takeaways.

On August 24, 2018, in United States v. Hoskins—F.3d—, 2018 WL 4038192 (2d Cir. 2018), the Second Circuit held that a foreign national who had not performed any illegal act within the territory of the United States could not be charged with accomplice or conspiracy liability in connection with a domestic concern’s or a covered foreign national’s alleged violation of the Foreign Corrupt Practices Act (FCPA). To convict, the government must show that the defendant, Lawrence Hoskins, was an “agent” of a “domestic concern” under 15 U.S.C. § 78dd–2 when allegedly conspiring to commit violations of the FCPA or aiding and abetting substantive FCPA violations.

On Monday, June 4, 2018, the Supreme Court, in Koons v. United States, clarified that when a District Court bases a sentence on statutory mandatory minimums and substantial assistance departures—and not the U.S. Sentencing Commission Guideline’s advisory range—petitioners who would otherwise be eligible to benefit from retroactive changes to the Guidelines cannot have their sentences reduced.

Last Friday, the Department of Justice publicly disclosed another declination under its FCPA pilot program. This is the sixth public declination by the Department since first launching the program in April 2016 (as previously discussed in a Crowell & Moring alert). It also represents the first public declination since the Department announced the temporary extension of the pilot program on March 10, 2017, and the first under the new administration.

The latest ABA Criminal Justice magazine features an article by C&M attorneys, "The Evolving Landscape of Legal Privilege in Internal Investigations." In the article, we analyze a series of high profile cases involving disputes over the attorney-client privilege and work product doctrine, and we provide insights on avoiding potential pitfalls (the D.C. Circuit's August 2015 opinion upholding privilege in the KBR dispute is explored in Crowell and Moring's August 12, 2015 Client Alert).

In a decision preserving the strength of the attorney-client privilege, the D.C. Circuit in U.S. ex rel. Barko v. Halliburton once again vacated an order from the district court requiring KBR to produce attorney-client privileged documents created during an internal investigation. Specifically,  the D.C. Circuit granted mandamus based on the "clear and indisputable error" in the findings that (1) KBR had waived  the privilege under Rule 612 by allowing a non-lawyer, Rule 30(b)(6) witness to review the investigation  report during deposition preparation; and (2) KBR had put the investigation report into issue by mentioning the company's "investigative mechanism" in a motion for summary judgment.