Sunday, March 17, 2019
I wasn't there, but was just reading Assistant AG Benczkowski's written remarks from the 33rd Annual ABA National Institute on White Collar Crime (see here). Here are some thoughts that caught my eye -
- It is good to see his approach on recognizing that companies are more likely to comply if they know the rules of the game in reporting and cooperating. Transparency is key to enforcing corporate compliance and it is wonderful to see this recognized.
- He claims that there have been "6,500 defendants in white-collar prosecutions, a modest increase over the prior year." But he doesn't tell us how he defines white collar crime. Trac (see here) claims the number is down. And as I noted, there is no consistent methodology for reporting white collar crime -especially as to what crimes are included. So we really can't assess who is accurate. When he gets to specific internal numbers, like what the Fraud Section's Securities and Financial Fraud Unit charged, that makes sense. But claiming that white collar prosecutions as a whole have increased needs a lot more explaining.
- It is good to see that DOJ will be using an "'anti-piling on' policy to reduce or apportion financial fines, forfeitures, and restitution between authorities to ensure that the overall outcome is equitable and just." There needs to be a coordinated effort so it is good to see this new practice continuing.
- It is likewise good to see that the internal DOJ/SEC Resource Guide for FCPA matters will now be "reflected in the Corporate Enforcement Policy itself." Or does this mean that an internal policy, unenforceable at law, is just being moved from one place on the web to another?
- It is likewise good to see a training program for assuring consistency in prosecutorial discretion on evaluating effectiveness of corporate compliance programs. But wouldn't it be best to have this done outside the DOJ since if the program is held to be ineffective, it will be the DOJ moving ahead against the company.
- But my real concern with the comments lie here - "In 2018, our Fraud Section prosecutors charged 406 individuals, won 268 convictions, and brought 10 corporate enforcement actions." It is the use of the term "won" that raises flags. Prosecutors do not win convictions and do not lose cases - prosecutors do justice and that happens irrespective of whether there is a "win," "conviction," "not guilty," or "declination."
Overall, it's sounds good to see that "corporate transparency" will be something of the future, as this can enhance compliance efforts.