On April 14, Assistant Attorney General Caldwell addressed the New York University Center on Administration of Criminal Law’s Seventh Annual Conference on Regulatory Offenses and Criminal Law. Her remarks focused on parallel criminal and regulatory investigations, and she explained that such parallel proceedings maximize the potential for DOJ to ensure the appropriate resolution. Caldwell underscored the importance of criminal prosecutions, even when conduct could be pursued civilly or through regulatory action. She noted that criminal investigators have tools not available to civil or regulatory enforcement authorities, including search warrants, electronic surveillance techniques, and grand jury subpoenas. Caldwell also explained that criminal enforcement, by way of a non-prosecution or deferred prosecution agreement, offers benefits that civil enforcement does not. Criminal Division resolutions require entities to admit to misconduct, whereas some regulators allow “no admit, no deny” resolutions. Finally, in the case of deferred prosecution agreements, the indictment has already been filed, and the agreement can be “torn up” if the company commits a breach.
On April 17, Assistant Attorney General Caldwell addressed the New York University Law School’s Program on Corporate Compliance and Enforcement. She emphasized that DOJ was making efforts to be clearer about its expectations for corporate cooperation and the bases for corporate pleas and resolutions. If a company seeks cooperation credit, Caldwell explained, it must conduct a thorough internal investigation, turn over evidence of wrongdoing in a timely and complete way, and—perhaps most critically—identify culpable individuals and provide facts about their wrongdoing. Voluntary disclosure of corporate conduct, without more, is insufficient; true cooperation requires companies to identify wrongdoers and provide sufficient information to enable their prosecution. Caldwell also noted that companies may choose not to cooperate, but underscored that lack of timely and complete cooperation was one of the factors that led to guilty pleas, and landmark monetary penalties in the BNP Paribas and Credit Suisse prosecutions. Finally, Caldwell recognized that it would be helpful for companies to have information about cases that the Department declined to prosecute, but she noted that the value of this information must be weighed against the privacy interests of entities that have not been prosecuted. Caldwell directed the audience to the Foreign Corrupt Practices Act Resource Guide, published by the Criminal Division and SEC, which contains anonymized examples of real FCPA cases in which the Department declined to bring a prosecution. Caldwell also explained that the Criminal Division’s FCPA website provides opinion letters, which offer guidance on the Department’s approach to enforcing the FCPA.