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Acting Assistant Attorney General Rabbitt Talks Enforcement Numbers

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Earlier this week, Acting Assistant Attorney General Brian Rabbitt delivered this virtual speech at the FCPA’s annual dog and pony show (also know as the American Conference Institute’s FCPA conference).

As highlighted below, in the speech Rabbitt discussed, among other things, “the canard that white-collar enforcement — and FCPA enforcement in particular — has been lackluster during this administration.” As Rabbitt correctly stated: “nothing could be further from the truth.”

Rabbitt began:

“It is no exaggeration to say that the Criminal Division’s work in 2020 has been historic—both in terms of the results we have achieved and the circumstances under which we have achieved them.  Despite the significant obstacles presented by the pandemic, the Division has remained open for business.  Indeed, in many respects, our enforcement numbers are at an all-time high.  Of course, as I have said before, when it comes to a white-collar enforcement program, statistics can only tell you so much.  Numbers frequently vary from year to year based on factors that are often outside of our control, and they do not fully reflect the nature and quality of our cases.  But even with those caveats, the Criminal Division’s statistics over the past year demonstrate that our white-collar enforcement work—and our enforcement of the FCPA in particular—has been active and successful in 2020, even in the face of significant headwinds.”

As to FCPA enforcement specifically, Rabbitt stated:

“The Criminal Division has been particularly active in 2020 when it comes to enforcing the FCPA.  Of the dozen corporate resolutions the Fraud Section has entered into so far in 2020, seven — and, after today, eight — have been FCPA matters — an amount on par with the seven FCPA matters we brought last year.  Like our other corporate resolutions, the Criminal Division’s FCPA resolutions in 2020 have been impressive in size and scope, involving approximately $7,760,000,000 in amounts paid worldwide—a significant increase from the approximately $2,830,000,000 paid in 2019.  Of that amount, approximately $3,210,000,000 was paid to U.S. authorities, up slightly from 2019.  Our FCPA resolutions this year have also involved almost $2,250,000,000 in U.S. criminal monetary penalties, another increase from 2019, when the comparable figure was $1,620,000,000.”

Regarding individual enforcement actions, Rabbitt stated:

“Ensuring individual accountability for corporate wrongdoing has been a hallmark of our white-collar work in recent years, and 2020 was no exception.  This past year saw the Fraud Section publicly charge almost 300 individuals, including over 20 individuals charged in connection with corporate matters resolved during the year.  Some of our most-significant FCPA resolutions — such as Goldman Sachs, Herbalife, and Sargeant Marine — also included individual charges.  In fact, in 2020 the Fraud Section publicly charged 29 individuals in connection with FCPA matters — the third-highest number ever recorded in a calendar year, behind only the 34 individuals publicly charged in 2019 and the 31 individuals charged publicly in 2018. [Note: the DOJ has most certainly noted charged 29 individuals with FCPA charges in 2020 – Rabbitt is likely referring to FCPA charges as well as money laundering and other criminal charges in connection with or related to actual FCPA matters].”

Rabbitt continued:

“Beyond numbers, what really stands out about our FCPA enforcement efforts in 2020 is the nature, quality, and scope of the cases we have resolved.  Indeed, 2020 was bookended by two of the most significant FCPA matters in the Department’s history — the Airbus resolution in January and the Goldman Sachs 1MDB matter that we resolved in October.

The Airbus matter addressed an egregious, long-running scheme that involved hundreds of millions of dollars in bribes and profits, as well as conduct that spanned China, Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana.  The resolution included coordination with our partners in the U.K. and France and was, at the time it was announced, the largest global foreign bribery matter ever brought by the Department of Justice.

The Department’s recent Goldman Sachs 1MDB resolution was an equally important milestone in our FCPA enforcement efforts.  In connection with the resolution, the Malaysian arm of Goldman Sachs pleaded guilty to criminal FCPA charges.  The bank also agreed to pay over $2,900,000,000 and admit wrongdoing in connection with its role in a massive scheme that saw billions of dollars looted from the 1MDB fund and approximately $1,600,000,000 in bribes paid to corrupt foreign officials.  The case was record-setting in several respects.  In terms of FCPA cases, it involved: the largest-ever bribe amount paid; the largest-ever loss charged; one of the largest-ever profit amounts realized; the largest-ever monetary penalty paid to the United States; and coordination with the largest-ever number of foreign authorities.

Any year that included landmark resolutions such as Airbus and Goldman Sachs would be a banner year for the Department’s FCPA enforcement program.  But the Criminal Division also resolved a number of other significant FCPA matters in 2020.  Taken together, these cases demonstrate our enduring commitment to combatting corruption around the world and the broad-ranging scope of our efforts—a commitment recently recognized by the OECD, which in a November 2020 report lauded our “strong enforcement of the . . . FCPA,” noted our “prominent role in the fight against transnational corruption,” and observed that U.S. FCPA enforcement “has increased remarkably” in recent years.

Indeed, our FCPA cases in 2020 spanned industries, covering everything from the Goldman Sachs and Airbus matters—which involved the financial services and aerospace industries, respectively—to the energy, construction, consumer products, agriculture, and healthcare industries.  Our cases were also geographically diverse.  Our FCPA enforcement efforts have, in recent years, focused on regions such as South America—and that remained true in 2020.  But our cases this year spanned the globe, touching the U.S., Europe, Africa, the Middle East, and Asia as well.”

Rabbitt concluded his speech by making “two high-level observations” about the Criminal Division’s work thus far in 2020.

“First, our results demonstrate that our white-collar enforcement efforts have remained quite active in 2020, despite the significant challenges presented by a once-in-a-generation global pandemic that has had profound effects on everything we do.  Despite this, our corporate enforcement results — and our FCPA results in particular — have met or exceeded our work from last year — both in terms of numbers and the nature and quality of the cases we have brought.  That would be a noteworthy achievement any year, but it is remarkable in 2020 given the challenges we have faced.  And it is due in no small part to the hard work and dedication of the women and men of the Criminal Division.

Second, our results this year — and in prior years — should conclusively put to rest the canard that white-collar enforcement — and FCPA enforcement in particular — has been lackluster during this administration.  Nothing could be further from the truth.”

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