Mar. 31, 2021

Cryptocurrency and Corruption: The Future of FCPA Enforcement?

The long history of FCPA enforcement in the United States has highlighted the rationale for the breadth of the prohibitions on corrupt payments to include “anything of value.” From the classic suitcase full of cash to lavish travel and entertainment to promises of employment, as anti-corruption enforcement has evolved so, too, have the form of bribes being paid to influence foreign officials. Perhaps surprisingly, however, FCPA enforcement has yet to reach into the world of cryptocurrency in any meaningful way. Yet, as cryptocurrency flourishes, it becomes increasingly likely that the potential to quickly and anonymously transfer value in this way will become a preferred method for payment of bribes. In a guest article, Brian Frey, a partner at Alston & Bird, explains how this raises significant questions about whether federal investigators, regulators and prosecutors are equipped to root out corrupt cryptocurrency payments and whether companies are properly considering the unique compliance risks associated with handling cryptocurrency. See “Virtual Currencies: Opening a New Avenue for Financial Crimes” (Mar. 17, 2021).

Former CFTC Enforcement Director on Intragency Cooperation, Whisteblowers and What’s to Come

As head of the Division of Enforcement at the CFTC, James McDonald oversaw the Commission’s enforcement program, including its investigations and litigations, market surveillance activity, and whistleblower office. He has now joined Sullivan & Cromwell, where he is working with former SEC Enforcement Director Steven Peikin, another recent addition to the firm. In a recent interview, McDonald discussed his experience at the CFTC, the relationship between regulatory agencies, the CFTC’s whistleblower program and what to expect from the new administration. See “Practical Implications of the CFTC’s Enforcement Advisory on Foreign Corrupt Practices” (May 1, 2019).

Acting Fraud Section Chief Dan Kahn Shares Insights on How the DOJ Thinks About Compliance

Noting that “in many ways, compliance has to be much more diligent than normal” during the pandemic, Acting Chief of the DOJ’s Fraud Section Daniel Kahn acknowledged that budget cuts and the vagaries of remote work pose new challenges for corporations as they continue to implement their compliance programs. Speaking at SCCE’s first Corporate Compliance Enforcement Conference, Kahn, in a one-on-one panel with William Jacobson, a partner at Allen & Overy, emphasized the importance of continuous evolution, both in addressing changes organizations may have had to make to their compliance programs during the pandemic and in making adjustments to compliance programs more generally. We summarize the key takeaways from the discussion. See our two-part series on updates to the ECCP: “Encouraging Companies to Make Compliance a Positive Feedback Loop” (Jun. 24, 2020); “Providing More Nuance on Training, M&A and Third-Party Management” (Jul. 8, 2020).

The Board’s Role in FCPA Compliance

Board oversight of FCPA compliance entails understanding a company’s risk profile, compliance program and best practices, and questioning and testing whether a program is fit for purpose and being implemented consistently by management, explained Kathryn Cameron Atkinson, a member at Miller & Chevalier, at a recent Strafford seminar. She and Jay G. Martin, senior counsel at Willkie Farr & Gallagher, analyzed the common law standards and regulatory duties imposed on boards as they relate to compliance oversight and discussed how a board can ensure compliance program effectiveness. We distill their insights. See “Board Responsibility for Ethics and Compliance” (Jun. 15, 2016).

A Quick-Start Guide to Risk Assessments

Risk assessments are cornerstones of all compliance programs – how else can a company ensure that its program is risk-based and fit for purpose? The process of identifying the risks a company faces and ranking them against each other, however, can seem overwhelming. Here, we have condensed the process into a quick-start guide to get you out the door and assessing risk with confidence. For a more detailed discussion, see our four-part guide to risk assessments: “Types of Assessments” (Jun. 26, 2019); “Techniques and Building a Team” (Aug. 7, 2019); “Where to Look for Risk and Risk Ranking” (Sep. 4, 2019); and “Wrapping Up and Avoiding Pitfalls” (Jan. 22, 2020).

Jones Day Welcomes Former USA as Partner in Pittsburgh

Scott Brady, the former United States Attorney for the Western District of Pennsylvania, will assist clients conducting internal and regulatory investigations, lead corporate compliance reviews, provide counsel on government enforcement actions, and advise on FCPA matters. For more from Jones Day, see “How CCOs Can Avoid Personal Liability for an Organization’s Compliance Failures” (Jan. 6, 2021).

Sidley Expands White Collar Bench in Chicago With Addition of Daniel Rubinstein

He will serve as the firm’s global co-leader of the white collar, government litigation and investigations practice. For more from Sidley Austin, see “Revisiting Compliance Programs in Light of the DOJ’s Updated ECCP” (Sep. 30, 2020).