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DOJ Individual Actions: The Strange Public – Private Divide

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This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2017 and historically.

As highlighted in the prior post, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is, despite the DOJ’s rhetoric, 77% of DOJ corporate enforcement actions since 2006 have not (at least yet) resulted in any related DOJ FCPA charges against company employees.

Another very interesting and significant picture emerges when analyzing actual DOJ individual FCPA prosecutions based on whether the individual charged was employed by or otherwise associated with an issuer or a private business organization.

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A Focus On DOJ Individual Actions

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This recent post focused on SEC individual FCPA actions in 2017 and historically and this post highlights certain facts and figures concerning the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act violations in 2017 and historically.

As highlighted numerous times on FCPA Professor over the past several years, the DOJ frequently talks about the importance of individual criminal prosecutions. In 2017, DOJ officials stated: “The DOJ is committed to holding  individuals accountable for criminal activity.” “Effective deterrence of corporate corruption requires prosecution of culpable individuals.  We should not just announce large corporate fines and celebrate penalizing shareholders.”

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DOJ Returns To Russia Nuclear Bribery Scheme And Announces Additional Criminal Charges

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Previous posts here and here highlighted the DOJ’s 2015 Foreign Corrupt Practices Act enforcement action concerning a Russian nuclear bribery scheme.

As highlighted in the previous posts, Daren Condrey pleaded guilty to FCPA violations for allegedly bribing Vadim Mikerin.

Mikerin was an alleged Russian “foreign official” because he worked for TENAM Corp. (a Maryland corporation) because TENAM was a wholly-owned subsidiary on TENEX – an entity “indirectly owned and controlled by, and performed functions of, the government of the [Russian government].”

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A Focus On SEC Individual Actions

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This previous post highlighted various facts and figures from 2017 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 7 corporate SEC FCPA enforcement actions in 2017, just 1 (14%) has involved, at present, related SEC charges or findings against company employees.

In 2017, the SEC charged or found that 3 individuals violated the FCPA: Michael Cohen and Vanja Baros (associated with Och-Ziff) and Jeannot Lorenz (associated with Halliburton)

This post focuses on SEC FCPA individual actions historically.

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Misguided FCPA Blog Commentary

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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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