Earlier this month at the ACI Mexico Summit on Anti-Corruption & Compliance, Foreign Corrupt Practices Act (FCPA) and compliance lawyers from across Latin America gathered in Mexico City for two days of thought leadership and networking. This article summarizes three key takeaways from the conference for those who were not able to attend: (i) the burgeoning growth of compliance programs across LATAM; (ii) the importance of using cutting-edge technology to efficiently conduct an investigation in the modern era of “big data” and mobile devices; and (iii) the impact of recent regulatory changes in the US, particularly the Foreign Extortion Prevention Act (FEPA) and new whistleblower protections being introduced by the US Department of Justice (DOJ).

I. The Rise of Compliance in LATAM

The Mexico City conference demonstrated a clear trend toward formalizing compliance programs in large corporations across Mexico, one of the largest and fastest-growing markets globally, and the LATAM region more generally. Indeed, approximately one-third of the conference attendees hold a compliance-centric title for the LATAM region.

Companies across the region are thus increasingly recognizing the importance of adhering to laws, regulations, and ethical standards relevant to their industries and operations. As the complexity of those rules increases and pressure mounts to maintain compliant, moral, and transparent conduct, these businesses are investing more than ever in a comprehensive compliance program.

The emphasis on compliance in the region was not only demonstrated by the lively panel discussions about how to set up whistleblower programs and how to utilize international standards like ISO to guide compliance implementations but also by investments in:

• Hiring dedicated compliance professionals;
• Implementing anti-corruption training programs for employees;
• Developing and monitoring control systems; and
• Establishing relationships with legal advisors and specialized technology consultants ahead of crises.

II. The Importance of Legal Technology in Compliance Investigations

Several of the conference panels discussed the necessity of adopting legal and investigative technology to support the compliance function. Indeed, it was well understood that a successful investigation in the modern era of “big data” and mobile devices necessitates the use of correctly sized technological solutions.

Experts from private practice, in-house legal teams, and service providers each highlighted the importance of using analytics and AI platforms to cut through the “digital debris” and isolate digital information pertinent to the underlying issues. Likewise, each stakeholder group recognized that data mapping is an essential exercise to understand and manage corporate IT systems in an internal investigation. Special attention was also paid to mobile devices and how to effectively collect relevant business information from programs like WhatsApp and iMessage without running afoul of local labor law protections.

III. The Impact of FEPA and New US Whistleblower Protections

During the two-day conference, FEPA emerged as a central topic of discussion. With the introduction of FEPA, DOJ prosecutors now have a direct means to pursue corrupt foreign officials, likely leading to increased efforts in combating demand-side corruption globally. The enactment of FEPA underscores the importance of companies implementing robust anti-corruption compliance programs, including FEPA compliance, to navigate heightened enforcement measures. Companies considering self-disclosure or cooperation in bribery cases should anticipate increased evidence scrutiny related to both company employees and corrupt officials.

The regulatory development with the most questions during the week, however, was the DOJ Whistleblower Program, which was very recently previewed by Deputy Attorney General Monaco. In regions like Latin America, where corruption and economic challenges are pervasive issues for businesses and government entities alike, implementing new legislation, such as the Whistleblower Program, presents unique considerations. The primary defense against corporate malfeasance is establishing robust compliance measures within organizations. Companies must ensure comprehensive policies and procedures and practical training initiatives to reinforce adherence to legal standards and ethical practices. However, it's crucial to recognize that even the most rigorous compliance frameworks cannot eliminate non-compliance risk.

With the introduction of the new DOJ Whistleblower Program, companies must adopt proactive strategies to incentivize internal reporting mechanisms and advanced technology for internal investigations among employees. Encouraging staff to utilize internal reporting channels empowers organizations to conduct timely and independent assessments of potential violations. This proactive approach allows companies to evaluate the extent of the issue and make informed decisions regarding self-reporting or other remedial actions, thereby mitigating the risk of protracted investigations and regulatory scrutiny.