When the United States began grappling with COVID-19 in March 2020, the US Securities and Exchange Commission (SEC) Division of Enforcement acted swiftly to make clear to market participants that it was ramping up its efforts to identify and prevent fraud in the wake of the pandemic. Approximately seven months later, statistics released by the SEC bear this out.
Individual prosecutions under the Foreign Corrupt Practices Act (FCPA) have markedly increased over the past five years. This increase in case law will help to better define local, regional and international enforcement. In addition, more FCPA case law shedding clarity on open issues will be a boon to lawyers, judges and scholars seeking to understand the contours of a complex statute – the elucidation of which has previously been almost the sole province of enforcers.
The US Department of Justice (DOJ) has updated its guidance on the Evaluation of Corporate Compliance Programmes, providing increased clarity on some of the key questions that prosecutors ask in assessing the adequacy of corporate compliance programmes when making charging, sentencing and plea and settlement decisions. The guidance helps companies to proactively create or enhance their compliance programmes and effectively advocate before the DOJ in criminal investigations.
The US Department of Justice (DOJ) has issued a new guidance memorandum entitled "Evaluating a Business Organisation's Inability to Pay a Criminal Fine or Criminal Monetary Penalty". This memorandum aims to provide greater clarity, transparency and uniformity as to how the DOJ's Criminal Division evaluates companies' claims that they cannot pay a proposed criminal fine or monetary penalty.
A court has expressed concern with the government's "routine outsourcing" of investigations to the targets of those investigations seeking cooperation credit. The court noted the corporate target's "uniquely coercive position" over its employees, who may also be potential targets of the investigation. The decision may profoundly affect the structure and scope of cooperation agreements between the government and the corporate targets of criminal investigations.