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Former U.S. Attorneys From EDVA, DC, NJ, CDCA Sound Off On White Collar Enforcement

On June 3, 2021, four former United States Attorneys gathered at the American Conference Institute’s 23rd Annual Congress on the Foreign Corrupt Practices Act to offer key insights regarding the evolving white collar and financial crime enforcement landscape. Mark Mendelsohn, a partner at Paul Weiss, moderated a panel discussion that included Zach Terwilliger, the former chief law enforcement officer for the Eastern District of Virginia and a partner at Vinson & Elkins; Craig Carpenito, previously of the District of New Jersey; former U.S. Attorney for the District of Columbia Jessie Liu; and Nick Hanna, who previously served as the top prosecutor for the Central District of California.

The panelists first tackled the white collar and financial crime enforcement priorities of the Sessions & Barr Department of Justice (“DOJ”). Terwilliger stated that enforcement priorities were typically informed by both top-down directives from DOJ leadership as well as specific district-level priorities such as procurement fraud in the government-contracting rich Eastern District of Virginia. Carpenito concurred, stating that since many of the leading pharmaceutical companies were located in New Jersey, his office prioritized prosecuting healthcare fraud related to opioids. Terwilliger also opined on pandemic-related fraud. Regarding the DOJ’s sometimes top-down nature, Hanna mentioned how the DOJ renamed the United States Attorneys’ Manual to the Justice Manual as further evidence of the goal of speaking with one voice.  On the international front, Liu stated that there was a great deal of cooperation between the United States and its allies, such as the collaboration between the U.S., United Kingdom, and France who worked together to resolve the Airbus foreign bribery case.

Looking ahead, Terwilliger offered that, based upon DOJ pronouncements and the testimony and questions for the record responses of key DOJ nominees during their confirmation process, the priorities of the Biden administration include a focus on criminal justice reform, civil rights, environmental enforcement, domestic terrorism, and firearms prosecutions. Importantly, regarding white collar, Terwilliger gets “the sense that there will be robust white collar enforcement,” especially regarding environmental justice. He also said that he thinks that “there is some feeling amongst current DOJ leadership that white collar wasn’t an enforcement priority in the last administration so there is perceived ground to make up.”

Furthermore, Terwilliger believes that the Biden DOJ is likely to pursue white collar enforcement in the specific areas of procurement fraud, pandemic fraud, securities fraud related to environmental claims by publicly traded companies, as well as an increased focus on cybercrime. He stated that one of the reasons for the focus on fraud related to government spending is because anytime there are once-in-a-generation rescue packages and stimulus funding, there is always the “inside the beltway speak” of paying for these new programs by ferreting out waste, fraud, and abuse. Based upon Terwilliger’s prior experience with the Special Inspector Generals for the Troubled Asset Relief Program (SIGTARP), Afghanistan Reconstruction (SIGAR), and Iraq Reconstruction (SIGIR), he believes that given the unprecedented amount of spending surrounding pandemic relief, and the lack of due diligence on the front end, there will be enormous pressure on investigators and prosecutors to hold those who defrauded the government accountable. Whether these cases move beyond the low hanging fruit of criminals who committed flagrantly fraudulent shell company submissions remains to be seen.

In general, Terwilliger and his three former chief law enforcement officer colleagues expect to see white collar enforcement increase due to increased policy prioritization both directly and indirectly and as a result of external factors such as the reams of pandemic relief checks that went out in multiple tranches across the country.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.