Last Wednesday, Acting Assistant Attorney General Nicole Argentieri delivered the keynote address at the 40th International Conference on the Foreign Corrupt Practices Act (FCPA).
As part of her remarks, she announced a new resource dedicated to deepening the Department of Justice’s international partnerships in key parts of the world that she said would “enhance our ability to identify and prosecute foreign bribery offenses and allow us to generate new and impactful cases.”
Argentieri said the new resource in her agency’s fight against corruption is the International Corporate Anti-Bribery initiative, or ICAB, which will be driven by three experienced prosecutors, building on our existing bilateral and multilateral partnerships and forming new partnerships.
“We will start by focusing on regions where we can have the most impact in both coordination and case generation, with a focus on key threats to financial markets and the rule of law,” she said.
“Empowering experienced anti-bribery prosecutors to build critical relationships with our international counterparts in key parts of the world will result in enhanced information sharing, cooperation, and case development with our foreign partners.”
Nicole Argentieri, Acting Assistant AG, DOJ
The initiative will leverage US prosecutors’ particular experience, expertise, and language skills, which will allow them to build relationships with counterparts around the world to facilitate cooperation and information sharing, she said. And it is designed to help the department more effectively investigate and prosecute foreign bribery offenses affecting a multitude of regions.
Each member of this FCPA Unit initiative will work collaboratively across the Criminal Division — including with Money Laundering and Asset Recovery Sector (MLARS), the Office of International Affairs, the Office of Overseas Prosecutorial Development, Assistance, and Training, and the International Criminal Investigative Training Assistance Program — and with colleagues in other parts of the department, our law enforcement partners, and the State Department.
The initiative’s members will also work with the data experts in Fraud and MLARS to develop proactive leads in their respective regions and determine how DOJ can force multiply and assist foreign authorities in their parallel investigations.
“Empowering experienced anti-bribery prosecutors to build critical relationships with our international counterparts in key parts of the world will result in enhanced information sharing, cooperation, and case development with our foreign partners,” Argentieri said. “This is yet another reason companies considering whether or not to disclose misconduct should take note — call us before we, or our foreign partners, call you.”
Data analytics
Argentieri also mentioned the Criminal Division’s ongoing use of data analytics and it is expanding its use of data to enhance its FCPA enforcement efforts.
“Let me be the first to tell you that we have proactively used data to generate FCPA cases, and we’ve only just gotten started, she said.
From healthcare fraud to procurement fraud to the use of 10b5-1 data and trading plans in the securities space, the Criminal Division has long been an innovator in using data to enhance its investigations and prosecutions, she noted.
“I am proud to announce that we are taking that experience and expertise with data analysis and applying these tools to our FCPA investigations. Through investments in personnel, we have improved our ability to harness and analyze available data — both public and non-public — to identify potential wrongdoing involving foreign corruption. This approach has already generated successful FCPA investigations and prosecutions,” Argentieri said.
Going forward, the Division plans to double down on these efforts to allow its prosecutors to identify additional misconduct that may otherwise have gone undetected and bring to bear even more data, along with tools that can interpret and synthesize the information, she said.
“So, I suggest that companies take note of these efforts when considering the tough decision of whether or not to disclose misconduct,” she said, again invoking DOJ’s corporate enforcement policy (CEP) and its cooperation credit incentives for businesses.
GRIP note
The Criminal Division’s Fraud Section began applying them to financial services fraud, with the Division citing its use in bringing insider-trading charges (with the SEC bringing civil charges) against the former chief executive of telehealth provider Ontrak, Terren Peizer. In her remarks, Argentieri mentioned the use of such tools in a case it brought against Arturo Murillo, the former Minister of the Government of Bolivia, among others for a money laundering conspiracy. The Division combed through financial records and other data to aid its investigation.
DOJ’s busy 2023
DOJ’s Fraud Section has charged over 240 individuals this year, Argentieri noted, and the section prosecuted charges in over 40 trials so far.
It set a record high in the average alleged loss amount per defendant prosecuted by the section — over $25m per defendant.
And, in connection with the Fraud Section’s CEP declinations, it charged 14 individuals. “Our corporate enforcement policies encourage companies to voluntarily self-disclose misconduct and cooperate for good reason: It allows us to build stronger cases against culpable individuals more quickly,” Argentieri said.