Insights

On February 10, 2025, President Trump issued an Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (“Trump’s FCPA Order” or the “Order”), whose stated goal is “to restore American competitiveness and security by ordering revised, reasonable enforcement guidelines” for the FCPA. Fact Sheet: President Donald J. Trump Restores American Competitiveness and Security in FCPA Enforcement (“Fact Sheet”). Trump’s FCPA Order is part of his administration’s policy of “eliminating excessive barriers to American commerce abroad.”

On August 1, 2024, Deputy Attorney General Lisa Monaco unveiled the Department of Justice’s new Corporate Whistleblower Awards Pilot Program. The announcement marks the conclusion of the Department’s previously announced “sprint” towards a pilot program, as DAG Lisa Monaco first previewed back in March of this year. 

As collaboration tools and ephemeral messaging applications become ubiquitous in the modern workplace, the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) are making clear that their content must be preserved like traditional modes of communication. On Friday, January 26, the DOJ and the FTC announced that they are updating language in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas. Manish Kumar, Deputy Assistant Attorney General of the DOJ’s Antitrust Division in charge of criminal enforcement, noted that both DOJ and the FTC expect that companies and their current and former employees will preserve any and all responsive messages, regardless of their default settings to autodelete. An intentional failure to produce these communications may be treated as obstruction of justice.

On July 26, 2023, the U.S. Department of Justice (“DOJ”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued a Tri-Seal Compliance Note outlining their respective voluntary self-disclosure (“VSD”) procedures for potential violations of U.S. export controls and sanctions.  This announcement highlights the agencies’ focus on compliance with export controls, sanctions, and other U.S. national security laws, and reminds industry of the incentives for voluntarily disclosing potential violations, including mitigation of civil and criminal penalties. 

A New Jersey federal judge has denied two executives’ efforts to suppress statements made during an interview conducted as part of an internal investigation of alleged bribe payments in India even though their employer was hoping to take advantage of a U.S. Department of Justice FCPA Pilot Program.

On February 17, 2023, the Illinois Supreme Court ruled 4-3 that violations of the Biometric Information Privacy Act (“BIPA”) (the country’s first biometric privacy legislation) accrue for each incident of capture or dissemination of biometric information, and not only once for each data subject. Cothron v. White Castle Systems found based on the plain language of the statute that violations for collecting or disclosing biometric information occur at every scan or transaction. Cothron v. White Castle Sys., 2023 IL 128004. The court reached this conclusion while admitting the “absurd” implications, including that the ruling could result in damages of $17 billion. Id. at ¶ 40.

Recent confirmations of the U.S. Department of Justice’s (“DOJ’s”) senior leadership and enforcement actions coupled with the continued tough stance that the Biden administration is taking towards China signal that the DOJ’s China Initiative will likely remain a strategic priority. Announced in 2018, the China Initiative, led by the DOJ’s National Security Division, seeks to counter national security threats presented by the government of China by investigating and prosecuting economic espionage, trade secret theft, hacking, and other economic crimes. The China Initiative also focuses on protecting the nation’s critical infrastructure against external threats through foreign direct investment and supply chain compromises, as well as combatting covert efforts to influence the American public and policymakers without proper transparency. According to DOJ, “[a]bout 80 percent of all economic espionage prosecutions brought by the U.S. Department of Justice (DOJ) allege conduct that would benefit the Chinese state, and there is at least some nexus to China in around 60 percent of all trade secret theft cases.”

On April 5, 2021, the Financial Crimes Enforcement Network (FinCEN) published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register seeking public comment on 48 questions with respect to the implementation of the beneficial ownership reporting requirements in the Corporate Transparency Act (CTA) and the implementation of the related database maintenance use and disclosure provisions.  The deadline for comment is May 5, 2021.

Federal authorities continue to prioritize and aggressively pursue individuals across the country who seek to exploit coronavirus relief programs meant to aid small businesses and their employees. Over the past week, Muge Ma of New York and Samuel Yates of Texas were arrested, each for submitting multiple fraudulent applications for COVID-19 relief through the Paycheck Protection Program (PPP). Both men obtained loan proceeds before their schemes were uncovered.

The Justice Department filed the first of likely many criminal charges related to the coronavirus stimulus Paycheck Protection Program (PPP), the $660 billion taxpayer fund to provide largely forgivable loans to small businesses suffering under the strain of the pandemic.

On August 6, 2019, the U.K. Serious Fraud Office (SFO) released its highly-anticipated Guidance on Corporate Cooperation. Much like the approach taken by the U.S. Department of Justice, the SFO has stated in the guidance that “co-operation will be a relevant consideration in the SFO’s charging decisions.” While co-operation “does not guarantee any particular outcome,” under the SFO’s Guidance on Corporate Prosecutions and Deferred Prosecution Agreements Code of Practice, co-operation is a factor that weighs against prosecution when corporate management has adopted a “genuinely proactive approach” upon learning of potential wrongdoing. 

Promising that the Department of Justice (DOJ) will “follow evidence of health care fraud wherever it leads, including into corporate boardrooms and executive suites,” Assistant Attorney General Leslie Caldwell staked out DOJ’s heightened efforts to pursue “large-scale corporate health care fraud” through both criminal prosecutions and civil enforcement actions. In an April 18, 2016 speech to the Health Care Compliance Association’s 20th Annual Compliance Institute, AAG Caldwell also warned health care companies against compliance regimes that are mere “paper programs,” and signaled that when misconduct comes to light, the quality and effectiveness of a company’s compliance program will be an important factor that prosecutors will consider in determining whether to bring criminal charges.