Published: August 2017Contents
i) What are the hot topics?
In the United States, there is a continued focus on criminal and regulatory investigations of corporations and their employees, as well as on prosecutions involving foreign corruption, financial fraud, tax evasion, price-fixing, manipulation of benchmark interest rates, foreign exchange trading, export controls and other trade sanctions.
Responding to whistle-blower complaints also remains a hot topic in the US. The high reporting rate, the apparent success of the first four years of the Securities and Exchange Commission’s (SEC) whistle-blower bounty programme, the SEC’s willingness to pay bounties at or near the maximum amount allowed, and the SEC’s willingness to protect whistle-blowers that suffer retaliation through enforcement actions, all suggest that whistle-blower investigations will become increasingly prevalent in the future.
A notable current focus is on the prosecution of individuals. The past 12 months have seen changes in the US Department of Justice’s policies incentivising companies to self-report misconduct and provide all available evidence of the misconduct of employees to permit prosecutors to bring charges against individuals.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
US and non-US corporations have faced increasing scrutiny from US authorities, and their conduct, when deemed to run afoul of the law, continues to be punished severely by ever-increasing, record-breaking fines and the prosecution of corporate employees. And while in past years many corporate criminal investigations were resolved through deferred or non-prosecution agreements, the US Department of Justice has increasingly sought and obtained guilty pleas from corporate defendants.
This trend has not been limited to the US; while the US government continues to lead the movement to globalise the prosecution of corporations, a number of non-US authorities have adopted the US model. Parallel corporate investigations in multiple countries increasingly compound the problems for companies, as conflicting statutes, regulations and rules of procedure and evidence make the path to compliance a treacherous one. Government authorities also forge their own prosecutorial alliances and share evidence, further complicating a company’s defence.
iii) What are the biggest opportunities and challenges for practitioners and clients?
Corporate counsel around the world are increasingly called upon to advise their clients on the implications of criminal and regulatory investigations outside their own jurisdictions. This can be a daunting task, as the practice of criminal law – particularly corporate criminal law – is notorious for following unwritten rules and practices that cannot be gleaned from a simple review of a country’s criminal code.
Challenges include understanding the following: under what circumstances can the corporate entity itself be charged with a crime? What are the possible penalties? Under what circumstances should a corporation voluntarily self-report potential misconduct on the part of its employees? Is it a realistic option for a corporation to defend itself at trial against a government agency? And how does a corporation manage the delicate interactions with the employees whose conduct is at issue?