Wachtell to Clients: Compliance Still Matters Under Trump

Wachtell Lipton Rosen & Katz issued a memo late Wednesday to clients warning they should continue to strive for effective white-collar compliance despite a slowdown in white-collar enforcement under President Donald Trump.

Clients might expect that a decrease in white-collar prosecutions and in the size of corporate fines and penalties over the past two years would lessen the urgency around effective compliance programs, but the prestigious New York firm said otherwise.

“Now is arguably the best time for corporations to continue investing in their compliance programs to ensure they have in place an effective and comprehensive set of compliance policies, procedures and internal controls,” the memo stated.

The memo was penned by Wachtell litigation partners John Savarese, Ralph Levene, and David Anders, as well as Marshall Miller, who is of counsel at the firm.

The number of federal white-collar matters prosecuted by the U.S. Department of Justice has hit a 20-year low under Trump, according to government data collected by Syracuse University’s Transactional Records Access Clearinghouse.

In May 2019 the Justice Department reported 443 new white-collar criminal prosecutions, a 10 percent decline from the month prior and a nearly 35 percent decline from five years ago, according to the TRAC report.

Despite these statistics Wachtell notes several key developments at the Department of Justice that should get clients’ attention.

Law enforcement authorities within the department have made their white-collar decision making process more transparent and have clarified what they expect to see in a corporate compliance regime, the memo stated. It noted that over the past two years there’s been a dramatic difference in how the government rewards and punishes corporate responses to misconduct.

The Justice Department has issued an extensive memorandum with its specific expectations concerning corporate compliance. Additionally, foreign governments and state attorneys have become more active in the past two years in aggressively bringing cases either alongside federal authorities or where they’ve chosen not to act.

“For all of these reasons, it is wise to invest in designing, implementing, and periodically refreshing and reorienting a robust compliance program,” the memo noted.

“In our experience, effective compliance programs provide a real opportunity to prevent misconduct from arising in the first place or nipping potential legal and compliance issues in the bud before they blossom into a full-blown corporate crisis.”

Wachtell has become known for issuing memos to its clients on key legal issues of the day that may include lessons learned. Sometimes memos are authored by Martin Lipton, a firm founding partner and a notable figure in Big Law.