Hughes Hubbard & Reed Partner Laura Perkins on FCPA Enforcement Under Trump

Laura Perkins spent ten years at the Justice Department’s Foreign Corrupt Practices Act (FCPA) unit.

Laura Perkins
Hughes Hubbard & Reed
Washington, D.C.

She left in July 2017 to become a partner in the Washington D.C. office of Hughes Hubbard & Reed.

Despite all of the noise, Perkins hasn’t noticed a difference in FCPA enforcement under the Trump administration.

“I was at the Department for six or seven months after the Trump administration came in,” Perkins told Corporate Crime Reporter in an interview last week. “There was very little change in FCPA enforcement. There was very little change in how the unit operated, in the resources made available to the unit, in how the cases were being handled. And since I have left, the cases that have come out have been in line in both form of resolution and size of fines as before. I’ve seen very little change.”

Has there been any change in staffing or the budget at the FCPA unit?

“There has been a change in staffing only in the sense of people leaving the unit and people joining the unit. But the level of staffing has stayed the same. When the hiring freeze was first put in place at the Department of Justice, there were several units and sections that were exempted from the hiring freeze. And the FCPA unit was one of those exempted.”

“To me that sends a signal from the administration coming in that enforcement wasn’t going to be toned down very much because they were continuing to fund it as they had before.”

Were you in on the development of the FCPA Pilot program?

“I was.”

What is it? What is its impact? How did it come about?

“The Pilot Program no longer exists. It has now been codified with some changes into the FCPA Enforcement Policy that the Department released in November 2017.”

“The Pilot Program was developed as a way to incentivize self reports and to send a clear message to companies about the benefits of self-reporting. At the same time there was a message also being sent about the potential of being caught without a self-report given the increased funding at the FBI and the increase in whistleblower reporting.”

Did the FCPA Pilot Program include a presumption of declination?

“It did not contain a presumption of declination. That is one of the changes that was made to the Pilot Program when it was codified into the FCPA Enforcement Policy. The Enforcement Policy now has a presumption of declination if certain factors are met, as well as a lack of aggravating circumstances.”

Was that presumption of declination considered when you were developing the Pilot Program?

“I can’t get into the internal discussions about the ins and outs of the Pilot Program.”

The presumption of declination has been just recently expanded to all corporate criminal cases. Is that accurate?

“I don’t believe that is accurate,” Perkins said. “I understand that the Fraud Section, in some of its securities fraud and health care fraud cases, will be applying the FCPA Enforcement Program. But that’s more within the Fraud Section and not more universally at U.S. Attorney’s offices across the country.”

Let’s say major company, major violation, no voluntary disclosure. Is there a possibility for a declination?

“The odds of a declination would be very small in those circumstances,” Perkins said. “With cooperation after the fact and remediation, under those circumstances, it would still be possible to get a deferred prosecution agreement.”

“The likelihood of that would depend on the severity of the conduct, the pervasiveness of the conduct, how high level it was within the company, as well as the level of cooperation. Was it very proactive cooperation? Did the company make foreign employees available for interviews?”

“Did they work around, to the extent that they could, data privacy restrictions?”

“In deciding whether it would be a deferred prosecution agreement or a guilty plea or some combination if there are parents and subsidiaries involved, there would be an evaluation of both the underlying conduct as well as the cooperation and the level of remediation. It would be possible to get a deferred prosecution agreement if there was no self-report, but there would have to be cooperation and remediation after the Department of Justice approaches the company.”

From your experience, what is the variable that makes the Justice Department insist on a monitor in an FCPA case?

“The most important variable is the state of the compliance program at the time the Department is negotiating a resolution with the company. Companies will come in, they will do presentations on the status of their compliance programs. And in my experience, the companies have during the course of their investigations started remediating and putting in place new policies, new procedures. But often they are not fully implemented at the time the resolution is being discussed. And they are not implemented to a point where the company can show the Department of Justice that the program is effective.”

“That is the main variable. What is the status of the compliance program? Is it fully implemented? And is it currently operating in an effective way? If a company is able to demonstrate that, then that is the largest contributing factor to not getting a monitor.”

Under the previous administration, Hui Chen was hired to be the compliance counsel to the Fraud Section. She would advise the Fraud Section on the strength of the company’s compliance program. Hui Chen has now left. Has the Justice Department filled her position?

“The position has not been filled yet, to my knowledge. It was posted as an opening a couple of months ago. But to my knowledge, it hasn’t been filled yet.”

Are you a monitor?

“I am not presently a monitor.”

Could you foresee yourself as a monitor?

“There are not that many companies that need monitors. But if the opportunity were to present itself, I would be interested in being a monitor. From what I have seen from companies that have had monitors, it is a way for a company to enhance compliance with the FCPA. It adds value to the company. And from what I’ve seen, it’s an interesting exercise both for the company and the monitor.”

[For the complete Interview with Laura Perkins, see page 13, print edition only.]

Copyright © Corporate Crime Reporter
In Print 48 Weeks A Year

Built on Notes Blog Core
Powered by WordPress