Photo courtesy of Davis Wright Tremaine LLP
The 2025 ABA White Collar Crime Conference in Miami drew a large audience of more than 1,300 lawyers and another several hundred attending the evening’s events — and yet there was not a single DOJ representative. This reflects the amorphous and challenged state of DOJ leadership. I have not enough fingers to count the close generational friends and senior DOJ leaders who have been terminated, transferred, or forced out. Natural questions about who is leading and where, and how they propose to get there were unanswered. The White-Collar Bar have become advocates for those who have been our foils. The “Regulators Speak” presentation reflected the fraught state of affairs. The new CFTC Director of Enforcement and the Acting SEC Associate Director of Enforcement spoke and certainly professed that while certain priorities may shift the fundamental effort to protect market integrity would continue, though the SEC representative confirmed that they will be abiding by the FCPA stand-down. This presentation was met by an individual audience member who took the microphone to cast a broadside against the new Administration.
Over the course of the conference and in blog posts leading up to it, I heard a number of hopeful rumblings from firms with significant white-collar practices that the FCPA mothballing will not last — but I think that is overly optimistic — and belied both by the language of the Attorney General’s memorandum and the President’s executive order. There is an uninformed — in this author’s opinion — air of invincibility that the workflow will somehow/someway continue. It will not. The pipeline is going to be squeezed. The impact on other veins of white-collar work may be equally transformative. The chief of the Fraud Section was reassigned to the Front Office, and the very consequential first wave of disruption — the termination or reassignment of leadership within Main Justice and key United States Attorneys’ offices continues. The Chief’s reassignment was followed by an email to a significant portion of the Fraud Section strongly suggesting that they seek a free transfer to a United States Attorney’s Office in a Border District. My suspicion is that the San Diego USAO employment inbox is about to be flooded. All should be equally aware of the public brinkmanship undertaken in the Adams matter which placed the entirety of the Public Integrity Section at risk.
So amidst the ongoing chaos, what can be taken away from the conference as guidance for attorneys and compliance officials? First some consensus on areas and work streams that are likely to continue or grow. With the extraordinary immigration and border focus, employment policies and practices may require greater attention and some restructuring and updating. There are many large business sector employers that rely and depend on immigrant labor. Second, while the target lists of bad state and individual actors may change under the new Administration, the importance of fulsome sanctions and export control policies will remain and may increase. Third, our health care system and its legal and compliance risks remain. Where there is much money, there will be fraud.
Focusing more specifically on core White Collar practice areas and attendant compliance risks, there was agreement that now is not the time to retreat from ongoing implementation of compliance programs, just because the FCPA has been sidelined. Statutes of limitations will not run during this Administration, and public companies will not get a pass from their auditors if they abandon controls. Further, global companies must anticipate some effort by other anti-corruption enforcement authorities to fill the vacuum, particularly when many foresee new FCPA guidance as focusing investigative attention on non-US companies. This author believes the AFA in France will not be shy about stepping into the void where their jurisdictional authority permits. In this context and notwithstanding the presence of unoccupied DOJ and SEC chairs, the Conference FCPA panel did a good job addressing these and other issues. The panelists avoided prognostications about exactly what was going to happen and offered some sound observations on what you may want to be thinking about if your client — Board, corporate leadership, or individuals — currently is facing an ongoing FCPA/ABC investigation.
And I believe these observations have broader application than just ABC matters. No one was suggesting that any company embrace new risks or quickly gut their compliance offices, but how much compliance does a corporate continue to do when the FCPA has been “tolled?” If tomorrow your public company compliance team uncovers a significant issue in its sales practices in Eastern Europe which clearly could subject them to FCPA or other criminal and civil exposure, what and how much does a company do? Does it self-report when there is no current inbox? There was certainly a panel consensus that Boards and GC’s are going to — at the least — be looking for budgets and not handing out carte blanche billing authority. There will be no boiling of the ocean, and more likely requests for scoped and tailored reviews where necessary. Do you contact DOJ if you have a current matter now mothballed (do you poke the bear) — consensus was no — but maybe while there is indifference or antipathy to the law, now is the time to get a long percolating matter off the stove.
Bottom line: help your clients understand that the present environment is fluid, and that answers are outflanked by questions. Compliance should not undo its initiatives, but there may be time to pause and reassess how compliance resources are deployed. Brush up on the anti-bribery laws in other key jurisdictions where clients have significant operations. Conduct fresh risk assessments which attempt to incorporate the changing US enforcement environment.
Robertson Park is a Partner at Davis Wright Tremaine LLP. Earlier in his career, he was a federal prosecutor and supervisor in the fraud section at the U.S. Department of Justice.
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