Many people are predicting the death of Foreign Corrupt Practices Act (FCPA) enforcement under the Trump administration.

Not so fast, says T. Markus Funk, a partner at White & Case in Chicago.

Funk sees opportunities. 

“Although most reporting on the Department of Justice’s latest FCPA guidelines has emphasized the anticipated reduction in overall anti-corruption enforcement, an equally important, but less noted, aspect has emerged – the Department’s new laser-like focus on protecting US businesses harmed by competitors – particularly foreign ones –  unfairly using bribery to secure business advantages,” Funk wrote recently.

“For US-based companies, this amounts to a formal invitation to level the competitive playing field by becoming whistleblowers, proactively investigating alleged competitor misconduct and making a report to the Department.”

“For non-US companies with a US jurisdictional nexus, on the other hand, the Department guidelines signal a materially enhanced risk of becoming an enforcement target.”

“People who represent companies view the term whistleblower with suspicion. That overlooks opportunities. I have represented large companies who have gone to the government and said – you should know that a competitor of ours is engaging in corrupt conduct overseas and here is the conduct. We conduct an investigation. You then pitch the government and say – here is the evidence, here are the laws. It’s almost a mirror image of what we do when we show up at the Bond Building to tell the FCPA enforcers what we found and put it into context.” 

“Being on the whistleblower side can be righteous in many cases. The administration has emphasized that there are overseas operators who will use corrupt means, whether that be bribery or fraud or trafficking, or any other type of corruption, to gain a competitive advantage. And I don’t think there is anything wrong for a company that has been besieged by this type of conduct, that is seeing their profits eroded for no good or fair reason, to take their case to the government.” 

“They see their clients taken away by an organized campaign to bad mouth or defame the company, making claims about the company’s product or leadership. And it’s okay for the company to defend itself. They will say – we are not going to suffer this any more and we are going to go to the courts or to law enforcement or to regulators and we are going to point out that there are these injustices committed against us and we want to do as much as we can to avoid future harm and correct past harm.”

The idea that you raise – corporations as whistleblowers – is unusual. How often does it happen?

“I don’t have statistics on it. My guess would be, talking with colleagues, is that it happens a bit more than people would think that it happens. It’s usually done in quiet. It’s one thing to file a defamation lawsuit against another company or against a consumer advocacy group.” 

“But when it comes to going to the government and saying – you should know that this competitor of ours is engaging in widespread pollution, dangerous work conditions, bribery or false claims – you are not going to see public statistics on that kind of reporting to the government. You are not going to ever see those kinds of things in the media, because the company wants to keep that quiet.” 

Do you see alternative resolutions – declinations, non prosecution agreements – increasing under this administration?

“It’s too early to tell. I’ve always believed in conducting a fair and unbiased complete investigation and then being very transparent with the government and not being particularly partisan. And then you try to persuade the government. I have seen where people try to get tricky with the government and it backfires.”

“There are a lot of resolutions to cases that take the form of the government simply walking away. There is no non prosecution agreement, there’s no deferred prosecution agreement. The government just says thank you, this is very helpful. We have some follow up questions. 

You answer the follow up questions. And the government is satisfied that you have been honest and often is satisfied that your company is a good company and this one just got away from them and there is no public interest in filing a lawsuit.” 

“I’ve become very familiar with the Justice Department manual and the factors for whether to decline or pursue a prosecution. We use those a lot to explain context to the government and persuade the government.” 

“The number of times the government simply walks away from a case is probably much greater than people think and that would be statistically captured.” 

“A typical case is that the government prosecutor hears from a whistleblower. They say some bad things happened at Acme Corporation. Acme hires our law firm. We conduct an independent investigation. We go to the government.  We do a multi-day presentation. We talk about the history of the company. We talk about what happened and what we found. We don’t hide the ball. There is no benefit in being strategic in terms of the facts.”

“And I’ve always found that prosecutors are much more reasonable and practical than some folks give them credit for. If you come to them with an open and honest approach and in candor and tell them – this is where the company made mistakes, here is where things went off the rails, and here is what the company has done to change that – many times, prosecutors respond favorably to that and say – we appreciate your taking the time and showing us how the company has remediated, how you have made some personnel changes. And we don’t think there is a benefit here in pursuing the company in a criminal case.”

“I just think that happens a lot more than maybe meets the eye or that is captured in any statistics. That was true for me when I was a prosecutor. And that’s also true for people working out of Main Justice.”

I also sense that there is this iceberg of corporate cases and investigations and we are only seeing what’s made public, and that’s the tip of all of these settlement agreements. 

“That’s exactly right. Many times the big cases you read about in the news, they appear in the news because things went wrong. The company got in trouble. I would joke with my colleagues – I wish we could tell people the good that we are doing for companies, but we end up working things out so well for our clients that nothing ever made it into the news.” 

“We have had some significant cases where we spent a lot of time traveling around the world, reporting to the Department of Justice on a weekly basis, and those cases never hit the news. I’m guessing that a fair number of white collar practitioners are not that well known because they manage to get things resolved for their clients early.”

You wrote an article last year titled – Safeguard Business and Personal Reputations Using the Sharp Tool of a Defamation Action. 

“Defamation law is a really powerful tool,” Funk says. “We lay out the overall landscape of defamation law in the United States. Usually we see defamation on the defense side – I have a few clients now who are facing that. The law is pretty particular about when defamation law applies and when it doesn’t. There are people who specialize in defamation.”

“But if you are an all around white collar attorney, understanding the perils and risks of defamation law and how it can be used proactively to protect our clients interest is very important. And that’s why we wrote that article. It’s lessons learned from a series of defamation cases that we had and were able to resolve to our favor.”

This term that crops up in your article is SLAPP, which stands for strategic litigation against public participation. And many public interest groups see corporations using this tactic as a way to counter public protest against corporate wrongdoing.

“We also make those arguments when we are on the defense side – that defamation is being used to silence us. Fortunately, we prevailed on those cases.” 

“Increasingly though you are seeing SLAPP defenses not prevailing, because they are being overused. There are certainly many cases where you can make a legitimate argument that defamation lawsuits are being used to silence someone who doesn’t agree with you. I like to think that we would never bring a lawsuit like that. We understand that there is a difference between saying – I don’t like what you are saying and saying – what you are saying is defamatory. And courts are getting increasingly good at understanding where that line lies.”

“The courts and litigants have become much more sophisticated about bringing and defending these types of lawsuits within the parameters of what SLAPP allows. The courts are striking a balance in a way that shows more sophistication than it did years ago.”

[For the complete Interview with T. Markus Funk, see 39 Corporate Crime Reporter 33(12), September 1, 2025, print edition only.]