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My heart and thoughts continue to go out to my fellow Houstonians and Texans affected by the cold snap of 2021. For those of us who thought 2021 might bring more sanity than 2020, we have experienced the first armed attacked on the US Capital since the War of 1812; the biggest financial bubble in the US since the Panic of 1907 and now, at least in Texas, the worst winter since 1895. I can hardly wait to see what the next 10+ months bring us.
Since about all I am thinking about now is when will electricity be restored to regular service, when the City of Houston will have water service back (Friday at this point) and when it will get back above 32 degrees, I thought I might continue my exploration of weather-related themes from which the compliance practitioner can learn and use in a best practices compliance program going forward.
Thursday, February 11, 2021
All companies big and small are collecting a tsunami of data. The US Department of Justice (DOJ) has now challenged corporate America to harness and analyze that data to improve corporate compliance programs by going beyond the risk profile of what
has happened to better understanding the risk profile of what
is happening. But where to begin? Artificial intelligence, which is already used to assist in the review and production of documents and other materials in response to government subpoenas and in corporate litigation, is invaluable in proactively reviewing data to identify and address compliance risks.
Takeaways
DOJ expects compliance programs to be well resourced and to continually evolve.
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Forecasting the enforcement priorities of the Department of Justice (DOJ) under a new administration is difficult at best. However, the Biden administration is widely expected to be tougher on corporate crime than its predecessor, consistent with the approach of prior Democratic administrations. If that is the case, the DOJ’s policies and priorities over the past four years that have emphasized individual culpability while incentivizing robust corporate compliance programs presumably will continue unchanged. However, Trump administration policies that arguably reflect a more business-friendly approach to corporate prosecutions will likely be revised or abandoned by the new administration, which is expected to more closely scrutinize and aggressively pursue corporate misconduct, including on the part of financial institutions. In addition, Foreign Corrupt Practices Act (FCPA) investigations, a key enforcement area in the
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In early January 2021, the U.S. Department of Justice’s (“the DOJ”) Antitrust Division (“the Division”) announced a Deferred Prosecution Agreement (“DPA”) with Argos USA LLC (“Argos” or “the Company”).
1 While DPAs have been used to resolve prosecutions in other Divisions of the DOJ, the Antitrust Division has considered DPAs only since a policy shift in 2019. Under the new policy, DPAs were to be applied in limited situations where a company committed an antitrust crime despite having an effective compliance program. Division leadership has further suggested that the compliance program in place at the time of the antitrust violation would need to be robust and thoughtful, and that DPAs would be considered only for companies that self-reported misconduct.
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Recent developments include updated DOJ compliance guidance, a continued rise in FCPA proceedings and penalties, and new investigatory approaches in light of the pandemic.
2020 saw many important developments in US white collar enforcement, driven by Administration priorities, business trends and practices, and the realities of COVID-19. The legal and business communities paid particular attention to the US Department of Justice’s (DOJ’s) updated guidance on “Evaluation of Corporate Compliance Programs,” the growing number of contentious Foreign Corrupt Practices Act (FCPA) proceedings (matched by significant penalties), and the impact of the COVID-19 pandemic on investigative strategies by regulators and corporate compliance programs. Now, with the United States transitioning to a new administration, it is yet to be seen whether these trends will continue and what other changes may be in store.