Name: Carrots and Sticks in Washington: Antitrust Whistleblowers and an FCPA SOL Extension
Uploaded: 2026-03-28T01:22:33.000Z
Duration: 15 min 52 s
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Hello everyone, this is Tom Fox, back again with Matt Kelly for another episode of the award-winning Compliance Into the Weeds, me with a little bit deeper bass voice today.

So Matt, I think we're going to look at two sides of the same coin, perhaps, or perhaps at looking at one problem in two different ways that I think is going to be fascinating for compliance professionals to consider.

So with that enigmatic opening, you want to set the stage?

Sure, so these are two different news items that have both emerged from Washington within the last week or so, one from the Trump administration on antitrust enforcement, where basically one of the top antitrust enforcers in Washington is warning companies that you must take your antitrust compliance and self-disclosure seriously because he is rocking and rolling with whistleblower awards and heavy prosecution of individuals to pressure companies to get ahead of the whistleblower or somebody flipping on you risk.

And then issue number two actually comes from the Democratic side in the Senate, where just yesterday, on Monday, March 9, a bunch of leading Senate Democrats proposed the FCPA Reinforcement Act, which would extend the statute of limitations on FCPA violations from 5 years to 10, where their message was expressly that they want to give some future administration, presumably in Democratic hands, more time to be able to enforce against FCPA violations that might be happening right now, that they believe the Trump administration is not seriously enforcing,

and they do have some merit to that belief.

But Tom, I would submit, when you think about it, both of these things, the antitrust statements coming out of the Trump administration, the FCPA reinforcement coming from Senate Democrats, they're both leaning on companies to, guys, take this compliance stuff seriously because if we have a chance to hold companies accountable, we will build the mechanisms to be able to.

When the push comes to shove, we can talk about it a bit.

But really, for compliance officers, these are two messages about why your compliance efforts still matter, even today when a lot of cynics think that ethics and compliance went out of style with the Joe Biden administration.

Matt, I'm going to put this question in the queue to maybe explore at the end,

but it struck me as listening to you that does the Jay Clayton SD&Y new declination policy perhaps even touch on that?

And I don't want an answer now, but I'm going to maybe explore that at the end.

So why don't we go through each one of those in a little bit more detail?

What did you see in there, new different or things that the corporate compliance officer needs to be cognizant, aware of,

Sure, so this was a speech from one of the senior Justice Department officials by a man by the name of Daniel Gladd.

He is the acting deputy assistant attorney general.

Also, prior to this role, he was in charge of the Justice Department's procurement and bid rigging fraud strike task force, which has been around for a few years,

but he talked to an antitrust enforcement conference happening in Washington last week where he talked a lot about the new antitrust whistleblower awards program and a heavy emphasis when the department is prosecuting antitrust violations against individuals.

The department is now really stepping up its push for prison time for these individuals.

And basically he said that we know exactly what we're doing here, that by enticing whistleblowers to come to us, the Justice Department, or threatening to drop the hammer on offending individuals, then we, the Justice Department, are gaining more intel about antitrust enforce activities out there.

So you companies participating in procurement fraud, bid rigging, cartels, you people who are doing this stuff, you know who you are.

He is trying to play both sides against each other here by saying that if we get wind of all of your misconduct through a whistleblower or somebody who's flipping so they won't get sent to prison for years, that's going to leave you, the company, on the back foot.

So you, company, really should pay much more attention to your anti-cartel and antitrust risks,

and if you find one, come forward and talk about it and don't dawdle on this.

Prosecutors have seen a surge in whistleblower submissions,

and there is another lane in the leniency race, insider versus company.

So if you, company, are aware that you have an antitrust issue and you're trying to figure out, do we disclose it?

Traditionally, there had been the dynamic that if you're involved in a cartel and you're the first one to report it, you get the big break at the resolution and all the other cartel people, cartel participants, are going to suffer a higher price.

Now there's a third dimension to this that if the whistleblower who's looking for an award or an individual who wants to avoid prison time, if they want to get these things, they could beat you to the punch.

So he was expressly saying that the time you're the time that you have to decide what to do with this, that's going to become compressed.

So you, company, better be on what you want to do here and understand how you'll respond when you do have a cartel matter that you're suddenly aware of.

Let's turn over to the FCPA potential amendment.

And what do you see the senators trying to do with this?

I believe it's led by Elizabeth Warren, but it may just be the Massachusetts focus of our podcast.

So Elizabeth Warren is one of the leading sponsors of this bill.

This was unveiled yesterday by pretty much the ranking minority Democrats on all the important Senate committees.

Elizabeth Warren, who is ranking member on the Banking Committee, there was Sheldon Whitehouse, who is from Rhode Island.

There were Dick Durbin, who is ranking member of the Judiciary Committee.

And all of them basically are proposing, cosigning legislation to extend the statute of limitations on FCPA violations from 5 years to 10.

Clearly, this is not going to be adopted today in this congressional cycle.

Whenever this does come to pass, then that extended statute of limitations would only last for 5 years, or I'm sorry, would only last for 8 years,

and then the statute of limitations would revert back to the usual 5-year period unless some future Congress decides to extend it to 10 years again.

Let's see, because their presidents run for two terms of four terms each.

This is clearly a political stunt, although it's a quite good one, in my opinion, where they are saying that if we have a Democratic Congress to pass this law and a Democratic president to sign it into law, since Republicans will not do either of these things, then that would give that new Democratic president 8 years of a longer statute of limitations to look back at violations happening right now.

And they're trying to make sure that any company that today thinks FCPA compliance is not a big deal because it's not like we're ever going to face enforcement risk or the clock is going to run out on it and we'll be fine, that's not what the Democrats want.

They're trying to create a mechanism where some future Democratic president would be able to bring enforcement actions for stuff you're doing today because you think FCPA enforcement is not a serious risk anymore.

Not while Republicans are in charge of Congress.

Might get passed next year in Congress if Democrats take over,

but then it's just going to be vetoed by President Trump.

So like I said, this is just a cheap political stunt in campaign season,

but it's a really good cheap political stunt as those things go.

And compliance officers could take this back to your board and your senior management and your first line of defense and say, look, there are scenarios where we could face vigorous enforcement again.

Let's not screw ourselves in that future by not taking anti-corruption compliance seriously today.

That is a mistake, which I believe it is true.

That is a mistake, but that's what's going on.

Matt, in listening to this part of our podcast, it also strikes me that when we talked about the SD&Y Southern District of New York declination program, I think we at least implicitly recognized this was a very big carrot.

Now, I think you've just described two very big sticks.

So maybe all of this is really moving in towards one direction.

I'm going to maybe take it either a different way or a step further because I think all of this is making the compliance function and corporate compliance officers, the compliance function more valuable and compliance officers even more important now because even without robust DOJ enforcement, it's around the corner.

And whether that's an insider whistleblower, whether that's an extended statute of limitation, or the opportunity to receive literally a declination within 14 days of self-disclosure, those are both significant carrots and sticks and emphasize, to me at least, the need for a robust compliance program that would detect these matters or prevent them.

And I was rather surprised when I came to the conclusion that a Trump administration speech on antitrust and Senate Democrats trying to grandstand on anti-corruption, they're pretty much driving toward the same end goal, which is that companies need to have a solid compliance function that, A, can detect a violation when it happens, and

then B, they need a corporate culture where they know what they want to do with it when they do become aware of the violation.

Let me pivot back to the antitrust speech from Mr.

Gladd because I did dig up the language here and I think it's telling.

Employees, former employees, consultants, market participants, all have a financial incentive to report early with original information.

For companies in counsel, slow internal deliberation is now riskier than it used to be.

Then I'll jump forward a bit to a part that I think really strikes with compliance officers.

He goes on to say, for your corporate clients he was talking to outside counsel for your corporate clients, the best defense against whistleblower reports is to create a corporate culture where employees feel empowered to report concerns internally, where those reports are investigated promptly and thoroughly,

and where companies self-report to us when they discover criminal conduct.

So he is basically saying that you need a certain capacity to find the events and the violations,

but more than that, you have to have a corporate culture where you're like, we know what we want to do with this and what we want to do is disclose.

Maybe you want to disclose because you have federal prosecutors like Jay Clayton in New York who are pretty much going to give out declinations like candy for a lot of crimes.

Or maybe you are just preparing for that because there are future scenarios that I do not think are far-fetched where Democrats are running Washington again and they are going to go, I think, hog wild on companies that especially were involved in corruption with the Trump administration.

And we have seen multiple examples of big businesses kicking large donations to the Trump family or they are in business with Trump's sons and the Trump organization and the businesses that those people are doing, which are clearly involved and have a lot of connections to government contracting.

There's a lot that stinks about what's going on in the Trump administration now.

And are they going to be looking to enforce against those parties?

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Carrots and Sticks in Washington: Antitrust Whistleblowers and an FCPA SOL Extension

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