94 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 95 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C C disclosing the criminal conduct to DOJ, in almost real time, allows the DOJ the opportunity to reward companies that come forward while stopping criminal activity that might have gone on undetected. The recent Corsa Coal case illustrates the premium that the DOJ now places on voluntary self-disclosure. There, over a four-year period, employees and agents of Corsa Coal engaged in a scheme to bribe Egyptian government officials in order to obtain and retain lucrative contracts to supply coal to Al Nasr Company for Coke and Chemicals, an Egyptian state-owned and – controlled coke company. The DOJ declined to prosecute Corsa Coal for its clear violations of the Foreign Corrupt Practices Act (“FCPA”) because the company voluntarily self-disclosed the misconduct, cooperated with the government’s investigation, and timely and appropriately remediated. In a similar spirit, in January 2024, the United States Attorney’s Office for the Southern District of New York (“SDNY”) announced its new “Whistleblower Pilot Program” designed to encourage early and voluntary self-disclosure of criminal conduct by individual participants in certain non-violent offenses. While the possibility of receiving a non-prosecution agreement may encourage some individuals to come forward with information, there are substantive limitations to the policy that should be understood: ■ First, the self-disclosure must be voluntary – not in response to a government inquiry or a reporting obligation. ■ Second, the information must be original – meaning the information is not public or otherwise already known to the SDNY. ■ Third, the Program requires full and complete cooperation, providing substantial assistance in other prosecutions against equally or more culpable people. Individuals should work with counsel to navigate this policy and the inherent risks in approaching the SDNY with information it might already know of. Most recently, on March 7, 2024, Deputy Attorney General Lisa Monaco announced that the DOJ would be starting a whistleblower rewards program of its own – providing monetary rewards to individuals who provide certain information to the DOJ. Notably, the DOJ indicated it is particularly interested in information concerning criminal abuse of the U.S. financial system, as well as foreign and domestic corruption cases, especially involving illegal corporate payments to government officials. In announcing the program, DAG Monaco compared it to the SEC and Commodity Futures Trading Commission (“CFTC”) equivalent programs, which have played a significant role in enforcement over the last decade. “Off-Channel” Communications Regulation On the off-channel communications front, the SEC continues to penalize companies for failing to effectively manage its employees’ use of personal devices and messaging applications, when such communications are not under the companies’ control and retention capability. Over the past 18 months, there have been more than 50 companies collectively penalized almost $1.5B for lax off-channel communications policies, which the SEC alleges to have impeded investigations. Similarly, the CFTC has also been aggressive in this space, fining market participants hundreds of millions of dollars in the last year. While these enforcement actions have generally focused on broker dealers, investment advisors, and other financial institutions, in our view, the bar has now been set. Enforcement agencies and criminal prosecutors alike now demand that substantive business communications occurring on personal devices or elsewhere be retained and, if relevant, be made available for production if so requested. White Collar Defense
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