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DOJ Enforcement Of The FCPA – Year In Review

This previous post [1] highlighted facts and figures from SEC enforcement of the FCPA in 2015.

This post highlights facts and figures from corporate DOJ FCPA enforcement in 2015. (See here [2] for a similar post from 2014, here [3] for a similar post from 2013, here [4] for a similar post from 2012, here [5] for a similar post from 2011, and here [6] from 2010).

When reviewing the statistics below, keep in mind that there were only 2 corporate FCPA enforcement actions in 2015. Thus, certain of the below statistics are largely meaningless, yet nevertheless highlighted for comparative purposes.

Settlement Amounts and Specifics

In 2015, the DOJ brought 2 corporate FCPA enforcement actions (the lowest number of corporate DOJ FCPA enforcement actions since 2006).

By comparison, in 2014, the DOJ brought 7 corporate FCPA enforcement actions; in 2013 the DOJ brought 7 corporate enforcement action; in 2012 the DOJ brought 9 corporate FCPA enforcement actions; in 2011 the DOJ brought 11 corporate enforcement actions; and in 2010 the DOJ brought 17 corporate enforcement actions.  (Note:  these figures  use the “core” approach to FCPA statistics – see here [7] for the prior post – an approach also endorsed by the DOJ – see here [8]).

In the 2 corporate FCPA enforcement actions from 2014, the DOJ collected approximately $24.2 million in criminal fines.

By comparison, in the 7 corporate FCPA enforcement actions from 2014, the DOJ collected approximately $1.25 billion in criminal fines (an all-time record in terms of yearly FCPA settlement amounts);  in the 7 corporate FCPA enforcement actions from 2013, the DOJ collected approximately $420 million in criminal fines; in 2012, the DOJ collected approximately $142 million in criminal fines; in 2011, the DOJ collected approximately $355 million in criminal fines ($504 million including the $149 million forfeiture in the Jeffrey Tesler individual enforcement action); and in 2010, the DOJ collected approximately $870 million in criminal fines.

Corporate DOJ FCPA enforcement in 2015 ranged from $17.1 million (Louis Berger) to $7.1 million (IAP Worldwide). Both enforcement actions were DOJ only and involved privately-held companies.

In the 1 corporate FCPA enforcement actions where an analysis was possible, the DOJ agreed to a criminal fine at the minimum range suggested by the sentencing guidelines.

[Note – the IAP Worldwide enforcement action was resolved via an NPA and the DOJ does not set forth a guidelines range in NPAs]

Corporate vs. Individual Prosecutions

Of the 2 corporate DOJ enforcement actions in 2015, 2 (100%) resulted in related DOJ prosecutions of company employees. Notwithstanding this 2015 statistic, as highlighted in this prior post [9], approximately 75% of DOJ corporate enforcement actions since 2008 have not (at least yet) resulted in any DOJ charges against company employees.

The DOJ announced 8 individual FCPA enforcement actions in 2015 (Harder, Rama, Hirsch/McClung, Garcia, Condrey and Rincon / Shiera) in 6 core actions.

Stay tuned for future posts specifically about DOJ and SEC individual FCPA enforcement actions in 2015.

NPAs / DPAs

In 2015, 2 of the 2 (100%) DOJ corporate enforcement actions were resolved via an NPA (IAP Worldwide) or a DPA (Louis Berger).

By way of comparison, in 2014, 5 of the 7 (71%) DOJ corporate enforcement actions included an NPA or DPA; in 2013, 100% of corporate DOJ enforcement actions involved either an NPA or DPA; in 2012 100% of corporate DOJ enforcement actions involved either an NPA or a DPA;  in 2011 82% of corporate DOJ enforcement actions involved either an NPA or DPA; and in 2010 94% of corporate DOJ enforcement actions involved either an NPA or DPA.

Since 2010, approximately 85% of corporate DOJ enforcement actions have involved either an NPA or DPA.

Voluntary Disclosures

Of the 2 DOJ corporate enforcement actions in 2015, 1 enforcement action (50%) was the result of a corporate voluntary disclosure.

[Note – the Louis Berger DPA states as follows:  “after the government had made [the company] … aware of a False Claim Act investigation, [the company] conducted an internal investigation, discovered potential FCPA violations, and voluntarily self-reported to the [DOJ] the misconduct.” The origin of the IAP Worldwide action is unclear as the NPA makes no mention of voluntary disclosure or other potential origins of the action.]

By way of comparison, of the 7 corporate DOJ FCPA enforcement actions in 2014, 2 enforcement actions (29%) were the result of corporate voluntary disclosures; in 2013 57% of corporate FCPA enforcement actions were the result of corporate voluntary disclosures or the direct result of a related voluntary disclosure; in 2012, 78% of corporate FCPA enforcement actions were the result of corporate voluntary disclosures or casually related to previous corporate voluntary disclosures; in 2011, 73% of corporate FCPA enforcement actions were the result of corporate voluntary disclosures.

Monitors

Of the 2 corporate DOJ FCPA enforcement actions in 2015, 1 (50%) enforcement action (Louis Berger) resulted in a corporate monitor.

By way of comparison, of the 7 corporate DOJ FCPA enforcement actions in 2014, 1 (14%) resulted in a corporate monitor; of the 7 corporate DOJ FCPA enforcement actions in 2013, 4 enforcement actions (57%) involved a monitor; of the 9 corporate DOJ FCPA enforcement actions in 2012, 3 enforcement actions (33%) involved a monitor; of the 11 corporate DOJ FCPA enforcement actions in 2011, 1 enforcement action (9%) involved a corporate monitor; of the 17 corporate DOJ enforcement actions in 2010, 7 enforcement actions (41%) involved a corporate monitor.

This remainder of this post provides an overview of corporate DOJ FCPA enforcement in 2015.

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Louis Berger Int’l.  (July 17th)

See here [10] for the prior post

Charges:  Conspiracy to violate the FCPA’s anti-bribery provisions

Resolution Vehicle:  DPA

Guidelines Range:  $17.1 million – $34.2 million

Penalty:  $17.1 million.

Disclosure:  The DPA states: “after the government had made [the company] … aware of a False Claim Act investigation, [the company] conducted an internal investigation, discovered potential FCPA violations, and voluntarily self-reported to the [DOJ] the misconduct”

Monitor:  Yes

Individuals Charged:  Yes

IAP Worldwide Services Inc.  (June 16th)

See here [11] for the prior post

Charges:  Not applicable.

Resolution Vehicle:  NPA

Guidelines Range:  None set forth in the NPA.

Penalty:  $7.1 million.

Disclosure:  Unclear, the NPA makes no mention of voluntary disclosure or other potential origins of the action.

Monitor:  No

Individuals Charged:  Yes