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Corporate FCPA Enforcement in the Era of Trump
The start of a new presidential administration brings along changes to personnel, policies and enforcement priorities. During the transition period, counsel to businesses and individuals try to anticipate which way the enforcement wind will be blowing in order to best advise anxious clients. One high-stakes area of enforcement focus, the Foreign Corrupt Practices Act (FCPA), has been subject to much speculation in this regard. Because of the enormous resources multinational companies must devote to compliance with FCPA's anti-corruption and record-keeping requirements — and, when things go awry, to paying ever-increasing penalties to the government here and abroad — the new administration's likely approach is of paramount importance. Despite predictions of a substantial pullback in the FCPA enforcement area, the writing on the wall does not necessarily suggest such a relaxation.
As has by now been widely chronicled, in the past, then-private citizen Donald J. Trump remarked that he believes enforcement of the FCPA harms United States companies' economic interests by hindering their ability to compete on an international scale. In his words, prosecution of FCPA violations for business activities that take place in countries where bribery often is considered the cost of doing business is “absolutely crazy.” Though no changes have been announced with respect to FCPA enforcement, in an analogous vein, the White House has moved to roll back consumer protections and financial regulations passed under the Dodd-Frank Act. The administration also has announced its intention to deconstruct aspects of the executive branch and regulatory scheme such as the Department of State and the Environmental Protection Agency (EPA).
In the face of such an approach, few were surprised when Trump selected as the next chairman of the Securities and Exchange Commission (SEC) the highly qualified W. Jay Clayton. When Clayton was the chair of the International Business Transactions Committee of the New York City Bar Association, the committee took a position similar to Trump's in a December 2011 article in which it wrote that ongoing enforcement of the FCPA may not be effective at achieving its purpose of combating global corruption, or may even exacerbate it, and that it also creates an international “asymmetry in regulation and enforcement.”
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