Attorney General Jeff Sessions promised yet again Monday to enforce the FCPA and other anti-corruption laws, in a wide-ranging speech meant to win over corporate compliance officers curious about how seriously the Trump Administration will take corporate misconduct.
Sessions spoke to an audience of several hundred at the Ethics & Compliance Initiative’s annual conference in Washington. If we take his words at face value, they’re reassuring to compliance professionals in several ways. Yes, he said, enforcement of the FCPA will continue. No, he said, the Justice Department won’t view every incident of an employee’s misconduct as a big heap of criminal liablity for the company itself.
Then again, Sessions also danced around the question of whether zealous U.S. enforcement of anti-corruption laws puts U.S. companies at a competitive disadvantage on the global stage. At one point in his speech, he praised anti-corruption enforcement as a vehicle to reward the many good companies out there that don’t bribe their way to success.
At another point, however, Sessions said: “The United States cannot allow its corporate community to be more vulnerable to unfair competition… we need to look at rules and procedures and laws that may be disadvantaging our companies, disadvantaging our ability to expand and increase our productivity. It was a big issue in this last election.” He then said he welcomed input from Corporate America about how to navigate between those two poles. So your dues to the U.S. Chamber of Commerce are indeed being put to work.
And while Sessions did telegraph that the pillars of the FCPA Pilot Program (self-disclosure, cooperation, and remediation) will be mainstays of his approach to corporate misconduct generally, he shed no new light on how much cooperation companies will need to provide, or how closely prosecutors will review corporate compliance programs to deem them “effective.”
All in all, the compliance community is still right where it was before Sessions took the stage Monday afternoon. We have a Justice Department that says it will maintain enforcement of the FCPA and another corporate misconduct statutes, with a more considerate (one might almost say forgiving) awareness that errant individuals do bad things at large corporations.
And we still have few specific examples of what that really means.
[More to come later.]