What to Expect When You’re Expecting (an FCPA Investigation): Federal Officials Look Ahead to 2022

As promised, we’re back with another update from the ABA’s 37^th Annual White Collar Institute in now slightly rainy San Francisco. The second day of the conference brought us a panel with insights on the federal government’s Foreign Corrupt Practices Act (FCPA) priorities, most notably from panelists David Last, Chief of the DOJ’s FCPA Unit, and Charles Cain, Chief of the SEC’s FCPA Unit.

While Last and Cain were both proud of their teams’ work in Fiscal Year 2021, they each were looking forward to the year ahead, too. They said the public can expect to see the DOJ and SEC increase the number of significant resolutions of FCPA matters this year. Last pointed to two key reasons for this expected increase: (1) a tremendous upswing in international cooperation in recent years, and (2) a willingness to let the facts lead the prosecutors to any and all appropriate charges in any given case.

Last, echoed by Cain, emphasized that DOJ will continue to pursue coordinated resolutions with multiple domestic and international authorities in 2022, and he called the formal and informal evidence-sharing and open lines of communication between the United States and foreign law enforcement agencies a “gamechanger.” Regulators noted that this cooperation has benefits for settling companies too, as it allows the government to execute its anti-“piling on” policy which seeks to prevent companies from paying penalties to multiple regulators for the same conduct.

Last further noted that DOJ’s FCPA Unit intends to use all of the tools in its toolkit in cases against both individuals and corporations, including pursuing charges of money laundering, wire fraud, and the Travel Act where appropriate. While individual prosecutions continue to be the priority, both Last and Cain foreshadowed an uptick in corporate resolutions for 2022. Cain noted that the SEC will have a renewed focus on admissions, and will require companies to admit wrongdoing in appropriate cases, rather than settle on a “no admit, no deny” basis.

Last’s and Cain’s comments were no surprise to those of us at Enforcement Edge given the Department’s repeated remarks that it will vigorously pursue wrongdoers across the board under this administration, and we’ll be keeping you up to date on how these enforcement priorities play out.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.