- Data Driven Federal Enforcement Actions – Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) agents are using data and analytics compiled from numerous financial institutions and other federal agencies to create algorithms designed to spot irregularities that signal possible criminal activity, including fraud. This practice has already delivered significant success for the government in spotting health care fraud and spoofing matters for prosecution and convictions. Businesses need to understand the way these algorithms operate to make certain they don’t run afoul of them in their financial and operational reports to the government.
- Increased Use of DOJ Corporate Monitors - On Oct. 28, 2021, Deputy Attorney General Lisa Monaco announced that the DOJ was revising its policy on prosecuting corporate entities, signaling that it is focused on corporate criminal liability and individual accountability. The new DOJ policy is that the “Department should favor the imposition of a monitor where there is a demonstrated need for, and clear benefit to be derived from, a monitorship.” With the DOJ’s new emphasis on increased use pf corporate monitoring, companies should consider having in place a robust compliance program.
- Push to Revoke Federal Deferred Prosecution Agreements (DPAs) – In the past, DPAs involved companies with enforcement actions paying fines, fixing related problems, and creating more extensive compliance programs with greater monitoring supervision. The Biden Administration’s remit for the DOJ is to review many of these DPAs and revoke those it deems inadequate, replacing them with more robust versions.
- More Companies Fixing Possible Enforcement Issues Before They Require Self-Reporting – Rather than waiting for a possible issue to require self-reporting to federal agencies, companies have begun to be more proactive in fixing these issues when they first appear.
- More Frequent and Effective Cryptocurrency-Related Cases – As FBI and DOJ agents have become more skilled at piercing the veil of anonymity that criminals benefit from by using cryptocurrency to commit crimes, expect to see more cases involving this activity and better-quality prosecutions.
- Fallout from the New Biden Administration Government-Wide Anti-Corruption Strategy – The strategy announced in December 2021 aims to protect U.S. “national security, economic equity, global anti-poverty and development efforts, and democracy itself,” by focusing on both the “supply side” and “demand side” of foreign bribery and corruption. It promises “aggressive enforcement” against facilitating and perpetuating foreign corruption, with a focus on ill-gotten gains hidden via real estate and other investments. The strategy also may place an additional premium on corporate anti-corruption compliance.
About the Authors
Greenberg Traurig’s White Collar Defense & Special Investigations Practice comprises over 60 experienced and knowledgeable global practitioners prepared to tackle whatever new challenges may arise, whenever they may arise. The team includes a number of former prosecutors from U.S. and non-U.S. enforcement agencies, with a wide array of experience and intimate knowledge of the highest levels of federal and state government.