Reviewing Anti-corruption Program Data Analytics Considerations
In November 2023, during her keynote address at the American Conference Institute’s international conference on the Foreign Corrupt Practices Act (FCPA), Acting Assistant Attorney General for the Criminal Division Nicole Argentieri announced that the Fraud Section of the Department of Justice (DOJ) intended to be more active in generating FCPA investigations and prosecutions. Rather than wait for companies to self-report or individuals to come forward as whistleblowers, Argentieri explained that the department intends to use data analytics as a tool to identify potential incidents of foreign bribery and initiate FCPA investigations.
The government has long used data analytics in criminal cases in the healthcare, government contracts, and securities spaces. This tool has assisted the government in identifying individuals, geographical locations, and industries to focus its efforts on, and has led to many successful prosecutions. For example, in the healthcare field, DOJ has worked with other government agencies to look at billing and prescription practices over certain geographic areas, devices, and prescribers, and relied on that information to identify and investigate outliers to determine whether they are bad actors. Similarly, the Securities and Exchange Commission has reviewed trading data for years in order to identify and flag suspicious trading patterns.
According to Argentieri, as of November 2023, the use of data analytics had already generated successful FCPA investigations and prosecutions. Argentieri explained that DOJ was “going to double down on these efforts to allow us 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 that information.”
What does this mean for you and your company?
The government expects companies to use data analytics themselves in implementing and in monitoring the effectiveness of their compliance programs and policies. For example, a company might analyze data pertaining to sales in high-risk regions to identify potential bribery and corruption concerns.
