R&C: How would you describe the current legal and regulatory environment governing anti-corruption efforts? To what extent have related risks and compliance demands increased for businesses?

Loesch: In the United States, prosecutors and regulators continue to aggressively enforce the Foreign Corrupt Practices Act (FCPA) and impose significant sanctions on corporations and individuals. With the Department of Justice (DOJ) Corporate Enforcement Policy, there are now significant incentives for companies that self-report misconduct, fully cooperate with the DOJ’s investigation, and timely and adequately remediate their compliance programmes. To receive full cooperation credit, among other things, companies are required to identify all individuals substantially involved in the underlying conduct and turn over all relevant facts. This is consistent with the DOJ’s increased focus on individual liability. Recent statements by DOJ officials substantiate that these cases are a priority and that they, with the FBI, will continue to dedicate resources to investigating and prosecuting these matters. Outside the United States, many countries are passing new anti-bribery laws or stepping up enforcement of existing laws. France recently conducted the first independent prosecution under its new anti-corruption law, Sapin II. In addition, Brazil and Argentina have both been more aggressive in independently pursuing investigations and prosecutions against corrupt government officials. US prosecutors and regulators are now working more closely with their foreign counterparts to share information and, in many instances, are arriving at global resolutions whereby financial sanctions are allocated between the participating jurisdictions. Thus, in the current environment, it is likely that a company with a bribery or corruption problem will be facing investigations in multiple jurisdictions. Compliance programmes must be appropriately scoped to meet these multinational risks.

Jan-Mar 2019 Issue

Navigant Consulting, Inc.