There was a myth that enforcement actions against companies would decline under the Trump administration, but the latest numbers clearly show that law enforcement is robust, said Kendall Day, a partner at Gibson, Dunn & Crutcher in Washington, D.C.

Day, a 15-year federal prosecutor and former acting U.S. deputy assistant attorney general, co-authored the law firm's year-end update on 2018 deferred and non-prosecution agreements with corporations, which was released Friday.

One piece of evidence in the report confirmed a robust enforcement year. Monetary recoveries exploded to nearly $8.1 billion, which almost matched the 2012 high of $9 billion. A handful of high-value resolutions led to the large recovery amount, the report said.

The report found that the number of agreements remained steady in 2018, with at least 24 deferred or non-prosecution agreements, one NPA addendum, and three declinations with disgorgement—sometimes called “NPA Lite.”

In comparison, 2017 saw 22 agreements. The report shows that under the Obama administration, the U.S. Department of Justice and the U.S. Securities and Exchange Commission averaged about 33 agreements per year, except for the one-time jump in 2015 when there were 102 agreements thanks to the Swiss Bank Program deals.

Gibson Dunn partner Joseph Warin, who chairs the law firm's litigation practice and co-chairs its white collar defense and investigations group, agreed with Day's assessment of 2018 activity.

“There were no surprises,” Warin said. “We saw continuity. A snapshot of this Republican year would look much the same as a shot earlier of the Democratic years. Whenever there is a change of administrations, people think there will be a fundamental sea change in enforcement. There's no sea change, except that the water continues to rise.”

Warin said one change in 2018 that general counsel should like was DOJ's new monitorship policy “that essentially says that monitors are not an automatic default on complex resolutions. They are the exception rather than the rule.”

He said his firm represented the Brazilian energy company Petroleo Brasileiro S.A., known as Petrobras, in a major non-prosecution agreement with DOJ last year, and no monitor was imposed. “We wanted to see if that policy was going to have operational impact, and it appears that it is,” he said.

Another key development, Day said, was a restating of what a corporation needs to do to earn cooperation credit from prosecutors. “DOJ continues to emphasize cooperation [in investigations],” Day noted, “almost to the extent that some other factors are de-emphasized, such as a robust compliance program.”

He said corporate cooperation can be “tailored toward producing information about some of the wrongdoers without requiring corporations to boil the ocean to find individuals.”

Warin said 2018 activity showed that the concept of deferred and non-prosecution agreements “is fully embedded in the jurisprudence of prosecuting corporations. There have been nearly 500 of them now.”

He called the deals a “core vehicle” for resolving criminal disputes between DOJ and companies.

“Multiple administrations and leadership of DOJ have reinforced that,” he added. “Whether under Democrats or Republicans, these instruments are here to stay.”