Category Archives: Cooperation

DOJ Issues First FCPA Deferred Prosecution Agreement Under New Guidelines

by Jay Holtmeier, Kimberly A. Parker, Christopher Cestaro, and Erin G.H. Sloane 

Left to right: Jay Holtmeier, Kimberly A. Parker, Christopher Cestaro, and Erin G.H. Sloane (photos courtesy of WilmerHale)

WHAT YOU NEED TO KNOW:

  • The DOJ entered into its first deferred prosecution agreement (“DPA”) for violations of the Foreign Corrupt Practices Act (“FCPA”) since the February 2025 Executive Order pausing FCPA enforcement.
  • The DPA provides further evidence that the DOJ may scrutinize conduct in Latin America more closely and highlights the risks of entering into joint venture arrangements, particularly in industries and geographies where there are corruption risks.
  • The DPA also demonstrates that the DOJ will likely continue to look to provide more favorable terms to companies that implement remediation, have a robust compliance program, and agree to report to the DOJ regarding the state of their compliance program.

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Deputy Attorney General Delivers Keynote at ACI FCPA Conference 

by Greg D. Andres, Martine M. Beamon, Daniel S. Kahn, and Neil H. MacBride

Left to right: Greg D. Andres, Martine M. Beamon, Daniel S. Kahn and Neil H. MacBride (photos courtesy of Davis Polk & Wardwell LLP)

On December 4, Deputy Attorney General Todd Blanche and other DOJ officials participated in the annual ACI FCPA conference in Washington DC, outlining key principles to corporate enforcement and FCPA investigations and prosecutions.  The remarks provide insight into how this DOJ is approaching FCPA enforcement and corporate enforcement more broadly.

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No Good Deed: Privilege is at Risk When the Government Directs Your Company’s Internal Investigation

by Jeffrey P. Schomig

Photo courtesy of Wilmer Cutler Pickering Hale and Dorr LLP.

It is a familiar scene in corporate governance:  A company learns of potential malfeasance within its ranks.  Its board forms a special committee and hires outside counsel to conduct an internal review.  Outside counsel interviews key employees and prepares a detailed account of events which it presents to the board. The board then decides whether to part ways with any employees who breached company policy or broke the law. 

A key additional decision facing the company is whether to cooperate with government authorities, some of whom may already be investigating the incident.  For many (if not most) companies, this is a decision in theory only.  Failure to cooperate can result in reputational harm among the public and stockholders, massive fines or even indictment of the company – an event that many company counsel and their boards fear could be a mortal blow.[1] 

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Personal and Ephemeral Messaging Platforms: A Priority Target for Enforcement and Regulators.

by David Craig, Michael Koenig, and Mark Rosman

Photos of the authors

Left to right: David Craig, Michael Koenig, and Mark Rosman (photos courtesy of Secretariat and Proskauer Rose)

In the not-too-distant past, professionals used email as their primary, if not their only, means of electronic communication. Texting was a futuristic novelty but also clumsy endeavor requiring between one and four button pushes on a small keypad to produce a single letter on an even smaller screen. It goes without saying, text messaging was ill-suited for rapid and substantive business communications. While a company’s employees occasionally sent work-related text messages for scheduling purposes, clear dividing lines generally existed between personal and professional communication. This made litigation holds and discovery relatively straight forward: discoverable business-related communications were in one bucket and non-discoverable personal communications were in another.

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SEC Enforcement Year-End Overview

by Joel Cohen, Ladan Stewart, Tami Stark, Marietou Diouf, Gabriella Klein, and Robert DeNault

Photos of the authors.

Top (Left to Right): Joel M. Cohen, Ladan Stewart and Tami Stark. Bottom (Left to Right): Marietou Diouf, Gabriella Klein, and Robert DeNault. (Photos courtesy of White & Case LLP)

Introduction

2024 marks the final year of Gary Gensler’s term as Chair of the U.S. Securities and Exchange Commission (“SEC”).  The Gensler SEC has been aggressive on both the enforcement and rulemaking fronts.  In response, the financial industry has fought back in sometimes unprecedented ways, including through legal challenges to the SEC’s rulemaking and enforcement programs.  While questions remain about what the SEC will prioritize under the leadership of presumptive incoming Chair Paul Atkins, it seems likely that many of Chair Gensler’s enforcement priorities will be rolled back in the coming years.  We can expect, for example, to have neared the end of the SEC’s years-long off-channel communications sweep.  And the Gensler SEC’s intense focus on the crypto industry will very likely shift significantly under Chair Atkins.

We provide here an overview of the SEC’s enforcement program in 2024 and end with additional thoughts on how the agency’s enforcement priorities will likely change in 2025 and beyond. 

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Where’s the Beef? Demonstrating “Timely & Appropriate” Remediation

by Jonny Frank, Michele Edwards, and Christopher Hoyle

photos of the authors

Left to right: Jonny Frank, Michele Edwards and Christopher Hoyle. Photos courtesy of StoneTurn Group, LLP.

This article is part 4 in a series on remediation. Read part 1 on Root Cause Analysis here, part 2 on Read Across and Remediation here, and part 3 on Corrective Action Plans here.

Organizations seeking credit for “timely and appropriate” remediation under the DOJ’s Corporate Enforcement Policy (“CEP”) must show they conducted a comprehensive root cause analysis, addressed the root cause findings, and implemented an effective compliance program.[1] Additional guidance on DOJ expectations appears in Criminal Division memos on the evaluation of compliance programs,[2] and the selection of corporate compliance monitors.[3] The SEC has similar expectations.[4]

Building on our discussion of Root Cause Analysis (“RCA”), Similar Misconduct, and Timely and Effective Corrective Action Plans, this article suggests key steps to demonstrate the remediation and compliance program effectiveness to the board, prosecutors, regulators and other stakeholders.   

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US Antitrust Regulators Threaten Ephemeral Messaging Users and Their Counsel with Obstruction Charges

by Jeremy Calsyn, Nowell Bamberger, Charles P. Balaan, and Joseph M. Kay

Photos of authors

Left to right: Jeremy Calsyn, Nowell Bamberger, Charles P. Balaan, and Joseph M. Kay (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

In recent months, federal regulators have made statements that companies and their counsel may be subject to criminal prosecution if they fail to preserve ephemeral messaging data when they receive a subpoena or other legal process.  In January 2024, the Deputy Assistant Attorney General for Criminal Enforcement at the DOJ Antitrust Division warned “failure to produce” ephemeral messaging may result in obstruction charges.[1]  Speaking at the ABA Antitrust Spring Meeting in April 2024, a lawyer for the Antitrust Division echoed that the DOJ “will not hesitate to bring obstruction charges” against company counsel and their clients if clients fail to properly retain so-called “ephemeral messages.”[2]  This is consistent with other recent warnings from the DOJ.[3]

The agencies’ focus on features of ephemeral messaging, which they argue can be used to hamper investigations, ignores the fact that ephemeral messaging applications have a legitimate role in the workplace where data security and management is paramount.  Despite the advantages of ephemeral messaging, clients should be aware of the legal and other risks presented by these applications and implement clear information retention policies that account for the organization’s duty to preserve information for litigation and government investigations. 

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