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Compliance Officers and Law Enforcement: Friends or Foes?
As we saw in Part One in last month's newsletter, regulators have recently shown a tendency to focus on compliance officers who they deem to have failed to ensure that the compliance and anti-money laundering (AML) programs that they oversee adequately prevented corporate wrongdoing, and there are several indications that regulators will continue to target compliance officers in 2018 in actions focused on Bank Secrecy Act (BSA)/AML compliance.
Regulators' Scrutiny of Compliance Officers in 2018
Regulators will likely continue to focus on individuals and corporate compliance programs this year. How do we know? For one, the Department of Justice (DOJ) “Yates Memo,” issued in September 2015 by then-Deputy Attorney General Sally Yates, which requires companies to provide all facts relevant to employee misconduct in order to receive cooperation credit, is still in effect. Despite the recent change in DOJ leadership, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein have each indicated that they will continue to prioritize individual accountability for corporate malfeasance. See, Jeff Sessions, Attorney General, DOJ, Remarks at Ethics and Compliance Initiative Annual Conference (Apr. 24, 2017) (“The Department of Justice will continue to emphasize the importance of holding individuals accountable for corporate misconduct. It is not merely companies, but specific individuals, who break the law.”); Rod Rosenstein, Deputy Attorney General, DOJ, Remarks at the 34th International Conference on the Foreign Corrupt Practices Act (Nov. 29, 2017) (“Effective deterrence of corporate corruption requires prosecution of culpable individuals. We should not just announce large corporate fines and celebrate penalizing shareholders.”). In addition, Securities and Exchange Commission (SEC) Chairman Jay Clayton stated during his confirmation hearing in 2017 that “individual accountability has a greater deterrent effect across the system than corporate accountability.” Nomination of Jay Clayton: Hearing Before the S. Comm. On Banking, Housing and Urban Affairs, 115th Cong. 99 (2017) (Responses to Written Questions of Sen. Reed from Jay Clayton). The SEC's 2017 Annual Report buttressed Chairman Clayton's statement by including a “focus on individual accountability” as one of the five core principles that will guide SEC enforcement decision-making in 2018. SEC, Fiscal Year 2017 Agency Financial Report (2017).
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