Regulatory Enforcement Post-Election

The Trump Administration will likely seek to scale back many forms of regulatory enforcement. However, President Trump campaigned on a law-and-order platform, and that makes it likely that prosecutors will continue focusing on cases involving fraud, corruption and other offenses where it can be shown that individuals acted with clear criminal intent. In that respect, the Yates Memo will likely remain DOJ policy insofar as its focus on individuals is consistent with intent-driven criminal enforcement.

SEC officials have outlined their intent to pursue FCPA enforcement actions grounded on commercial rather than official bribery, pursuant to the FCPA’s accounting provisions. Last year the SEC settled its first significant FCPA case against a hedge fund, and it included charges under anti-fraud provisions of the Investment Advisers Act of 1940. Increased criminal enforcement via the False Claims Act could be possible due to a DOJ policy requiring criminal prosecutors to review qui tam cases to determine whether to open a parallel criminal investigation.

Strategies that in-house counsel can apply to protect their clients include investing in compliance programs. Even where they fail to prevent violations, these can demonstrate efforts to avoid them. Also, learn from others’ mistakes. The best predictor of issues your organization could face is what has happened to your industry peers. One useful technique, in order to avoid groupthink: When nine people agree on a certain analysis or likely outcome, a tenth should be assigned to take a contrary view.