DOJ Bolsters International Cooperation to Combat Corruption

On November 29, 2023, Acting Assistant Attorney General Nicole Argentieri (Acting AAG Argentieri) spoke at the 40^th International Conference on the Foreign Corrupt Practices Act (FCPA) hosted by the American Conference Institute. During her keynote address, Acting AAG Argentieri announced the creation of the International Corporate Anti-Bribery initiative (ICAB), a new program by the U.S. Department of Justice (DOJ) to strengthen the United States’ global efforts in combating corruption through enhanced international cooperation.

The Foreign Corrupt Practices Act imposes criminal and civil penalties for bribing officials of foreign governments to seek business advantages. The FCPA reflects the United States’ commitment to combating bribery and corruption on a global scale and seeks to encourage ethical business practices in international transactions.

The ICAB initiative, which will be led by three veteran prosecutors with corruption expertise and relevant language skills, aims to leverage the DOJ’s existing international partnerships and build new ones, while strengthening the United States’ ability to identify, investigate, and prosecute foreign bribery offenses in targeted regions. Acting AAG Argentieri noted that the ICAB’s initial focus will be “on regions where we can have the most impact in coordination and case generation, focusing on key threats to financial markets and the rule of law.”

Although the initiative will be housed within the DOJ’s FCPA Unit, members will work across the DOJ’s Criminal Division, the U.S. Department of State, and with the DOJ’s foreign law enforcement partners, and data experts in fraud and money laundering. The initiative’s goal is to generate leads and to provide assistance to foreign authorities in concurrent investigations. Acting AAG Argentieri stated that “[t]his is yet another reason companies considering whether or not to disclose misconduct should take note” and emphasized “call us before we, or our foreign partners, call you.”

The DOJ believes that collaboration with foreign authorities will enhance the government’s effectiveness in combating corruption by streamlining evidence gathering, reducing potential hiding places for criminals, and facilitating the recovery of criminal proceeds, regardless of their location. Acting AAG Argentieri highlighted two FCPA cases to illustrate the role of international coordination in recent DOJ prosecutions. First, the corporate resolution entered into with Swiss-based technology company ABB, which was coordinated with South African authorities (resulting in a $315 million settlement.) And, second, the resolution with Corporación Financiera Colombiana S.A., a financial services firm, which was the first case to involve Colombian authorities (an $80 million settlement.) As AAG Argentieri noted, these cases are prime illustrations of how global law enforcement partners are increasingly united in addressing complex financial crimes.

Further, the DOJ plans to utilize another tool in its toolbox to identify and combat violations of the FCPA: data analytics. The DOJ has deployed data analytics in combating healthcare fraud and other financial crimes, to analyze and synthesize extensive datasets, such as financial records. Pursuant to the initiative, Acting AAG Argentieri noted that law enforcement officials will use data analytics to help proactively identify FCPA violations and then prosecute those violations. As Acting AAG Argentieri noted, through ICAB, the United States is “upping [its] game when it comes to data analytics.”

Notably, Acting AAG Argentieri did not indicate what data the DOJ has utilized to initiate its FCPA investigations. However, according to Acting AAG Argentieri, the uptick in the use of data analytics resulted in the successful prosecution of a former Bolivian Minister of Government, Arturo Murillo, who was sentenced to 70 months in prison for conspiracy to launder at least $532,000 in bribes that he received for corruptly helping a US company secure a lucrative contract from the Bolivian government.

The DOJ is planning to “double down” on these efforts and suggests that companies use the data available to them to identify and address potential misconduct. “Companies have better and more immediate access to their own data, and you can be sure that, if misconduct occurs, our prosecutors are going to ask what the company has done to analyze or track its own data — both at the time of the misconduct and when we are considering a potential resolution,” stated Acting AAG Argentieri.

Both the ICAB and the increased use of data analytics are in line with the DOJ’s recent policy guidance urging companies to voluntarily disclose, cooperate with the government, and remediate any issues. Acting AAG Argentieri emphasized these recent policy developments including revisions to the Corporate Enforcement Policy, which increased the incentives for voluntary self-disclosures; updates to the evaluation of corporate compliance programs; the Criminal Division’s Pilot Program on Compensation Incentives and Clawbacks; and the mergers and acquisitions voluntary self-disclosure “Safe Harbor” policy. The benefit of a voluntary self-disclosure is a presumption of declination when coupled with full cooperation and timely and appropriate remediation. And, even if a company does not voluntarily self-disclose, it can still receive benefits under the new policies. While there is no precise formula for fine reduction, the DOJ claims that the greatest benefit goes to those that truly go above and beyond in speed and consistency of remediation.

Thus, as is evident through not only AAG Argentieri’s recent remarks, but also through the DOJ’s recent policy revisions, the DOJ is conveying to the corporate community that it intends to intensify its international enforcement efforts. In doing so, it is placing an emphasis on international collaboration and leveraging data analytics, with the aim to encourage violators to self-report.

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