By Joanne Cursinella, J.D.
Seeking to dispel the myth that the DOJ is no longer is interested in prosecuting white collar crime, Acting Principal Deputy Assistant Attorney General Trevor N. McFadden, speaking at the recent 19th Annual Conference on Foreign Corrupt Practices Act, assured his audience that while the department is boosting its focus on violent crime prosecutions, “the Criminal Division is fully engaged in combatting crime in all its forms, and no matter what color collar its perpetrators wear.”
White collar crimes matter. Although admitting that recent focus of the department has been on prosecuting violent crimes and that the Criminal Division is “making strides” on violent crime prosecutions and investigations, McFadden said, in prepared remarks, that “a great deal” of the division’s work continues to focus on a wide array of white collar crime matters, including among others, securities fraud.
The department’s Money Laundering and Asset Recovery Section continues to bring cases that demonstrate the department’s commitment to maintaining the integrity and security of the U.S. financial system, McFadden reported He cited an example where the department recently entered into a deferred prosecution agreement with Western Union. The company admitted that it willfully failed to maintain an effective anti-money laundering program and that it aided and abetted wire fraud. As part of the agreement, Western Union forfeited $586 million and agreed to create new policies and procedures to avoid future violations. The money will be used to compensate victims of the fraud.
FCPA unit. The FCPA unit within the department’s fraud section has primary jurisdiction among department components for prosecuting FCPA matters and in developing FCPA enforcement policy. It remains an active enforcer: in the last decade, prosecutors in the FCPA unit have convicted over 100 individuals who committed FCPA violations or related criminal offenses and entered 101 corporate resolutions with well over $5 billion in corporate U.S. criminal fines, penalties and forfeiture, McFadden said.
Motivated by the importance of ensuring a fair playing field for honest corporations doing business abroad, the department continues to vigorously enforce the FCPA, McFadden declared, and the department is committed to enforcing the FCPA and to prosecuting fraud and corruption more generally. The department prioritizes the prosecutions of individuals who have willfully and corruptly violated the FCPA. And the department continues to work with business organizations and their counsel, regularly taking into consideration voluntary self-disclosures, cooperation, and remedial efforts when making charging decisions, McFadden added.
International cooperation. McFadden was pleased to report a “notable increase” in international cooperation between the department and its international partners in recent years. Cooperation is important and as part of cooperation with international partners, where appropriate, the department tries to reach global resolutions that apportion penalties between the relevant jurisdictions so that companies seeking to accept responsibility for their prior misconduct are not unfairly penalized for the same conduct by multiple agencies.
Transparency. The fraud section’s Pilot Program is one example of an effort to provide more transparency and consistency for the department’s corporate resolutions, McFadden said. The program began last April and it is now being reviewed in order to consider how the department can better motivate companies and individuals to voluntarily comply with the law and how the department’s prosecutorial priorities and expectations can be communicated to those subject to the FCPA. The program will continue in full force as the department evaluates it and until the department reaches a final decision regarding its permanence, McFadden said.