"We will continue to examine areas where additional guidance could be warranted. For example, we know that companies sometimes raise claims that they are unable to pay a proposed fine or monetary penalty. Although the U.S. Sentencing Guidelines and the sentencing provisions of Title 18 speak to this issue a bit, they don’t provide much in the way of concrete guidance or factors to consider. Accordingly, we are considering whether there are ways we can provide our prosecutors with better guidance and tools to assess such inability to pay claims.
We are also examining our own structures to ensure that our prosecutors are as focused as possible on a defined mission and that they are receiving all of the support and tools they need to be most effective. To take one example, our health care fraud prosecutors are able to leverage data analytics to identify fraud indicators within Medicare claims data. This use of data analytics has allowed for greater efficiency in identifying investigation targets, which expedites case development, saves resources, makes the overall program of enforcement more targeted and effective.
Health care isn’t the only arena where data can signal indicators of fraud. We know and have seen that trading data – whether in the commodities or securities arena – can identify similar indicators or anomalies that are suggestive of market manipulation and other fraudulent activity. As a result, we are now approaching enforcement, particularly in the commodities arena, around a data-driven approach. Just as with our health care enforcement efforts, we expect this to allow us to develop cases more efficiently and effectively.
In mentioning this data focused approach to identifying cases, I realize that the subject doesn’t fit as well with the other aspects of these remarks, which are directed at explaining how we have developed corporate enforcement policies that seek to convey a clear message. But the topic actually does fit thematically. Trust me.
The reason I mention our focus on data analytics in identifying cases is both to tout what we are doing, but also to let compliance-oriented companies in the securities and commodities trading space know that this is an area of focus. Whereas we are able to identify indicators and anomalies from market-wide data, companies have better and more immediate access to their own data. For that reason, if misconduct does occur, our prosecutors are going to inquire about what the company has done to analyze or track its own data resources – both at the time of the misconduct, as well as at the time we are considering a potential resolution. I mention this both to convey what we are doing in the spirit of transparency, but also to ensure thematic consistency in my remarks."
-Deputy Assistant Attorney General Matthew S. Miner
For example, we understand that, after misconduct is detected, a company’s lawyer, whether an in-house lawyer or outside counsel, will need to recommend an approach to the C-Suite and, in many cases, the board. If that lawyer advocates for voluntarily self-disclosing the misconduct, he or she will inevitably face questions about the consequences of such a disclosure, both positive and negative, and be asked about the likelihood of those consequences. And this is why the Department has developed voluntary self-disclosure policies, like the FCPA Corporate Enforcement Policy, to provide greater clarity regarding how voluntary self-disclosures will be treated and what will be expected from companies that seek self-disclosure credit. It is also why we publicize our declination decisions under the policy.