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The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2017

Gray Cloud

This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2017.

Continuing with the FCPA statistical feast, this post follows the chronology of FCPA scrutiny to FCPA enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.

That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4.5 years was the median length of time companies that resolved FCPA enforcement actions in 2017 were under scrutiny. (See here for the prior post highlighting that 4.25 years was the media length of time companies that resolved FCPA enforcement actions in 2016 were under scrutiny).

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Misguided FCPA Blog Commentary


This FCPA Blog post opines on the “three most important FCPA stories of 2017.” However, as highlighted in this post the opinion for the reason for the increase in individual prosecutions is misguided and lacking in any factual support.

The FCPA Blog post states: “More individuals held accountable. First under the Pilot Program, and now under the new DOJ guidance, companies are trying to qualify for cooperation credit. That puts more attention than ever on the individuals actually responsible for the overseas bribery. The fruits of the policy were evident in 2017.”

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The Origins Of 2017 Corporate FCPA Enforcement Actions


Yesterday’s post compared corporate FCPA enforcement actions in 2017 to prior years. However, before a Foreign Corrupt Practices Act enforcement action is announced, scrutiny must first arise.

Today’s post highlights the origins of 2017 corporate enforcement actions. (See here for a similar post highlighting the origins of 2016 corporate enforcement actions).

As highlighted in the post, like prior years, 2017 corporate enforcement actions originated in a variety of ways from voluntary disclosures, to foreign media reporting and foreign law enforcement investigations, to pro-active SEC investigations, to civil litigation.

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Corporate FCPA Enforcement In 2017 Compared To Prior Years

Statistical Analysis

This post, the first in a weeks-long statistical feast on FCPA Professor, compares corporate FCPA enforcement in 2017 to prior years. Keep the numbers in this post in mind when you see (or have seen already) other 2017 FCPA enforcement statistics that use creative and haphazard counting methods or fail to use accurate or consistent math.

The most reliable and accurate way to keep FCPA enforcement statistics is by using the “core” approach which focuses on unique instances of FCPA scrutiny. The core approach does not distort FCPA enforcement statistics by double counting parallel DOJ and SEC actions involving the same core conduct announced on the same day nor does the core approach distort FCPA enforcement statistics by separately counting the sometimes unique ways the DOJ slices and dices corporate conduct between parent companies and subsidiaries. As highlighted in the article “A Common Language to Remedy Distorted FCPA Enforcement Statistics,” the core approach to tracking FCPA enforcement has been endorsed by the DOJ and is a commonly accepted method used to track enforcement in other areas of law.

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A Focus On Third-Party Practices


Navex Global recently released this report titled “2017 Ethics and Compliance Third-Party Risk Management Benchmark Report.” I am always a bit skeptical of such survey data given that the results often seem to dovetail nicely with the product offering of the company publishing the survey. Indeed, a section of the report is titled “About Navex Global’s Third-Party Risk Management Solution.”

Moreover, I often wonder whether such surveys are even statistically valid. For instance, the survey was based on 427 survey respondents, with approximately 40% of respondents coming from large companies, and approximately 15% of respondents coming from the banking/financial services.

In any event, as highlighted below there are certain survey findings which caught my eye.

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