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DOJ Individual Actions: The Strange Public – Private Divide

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These pages track all sorts of Foreign Corrupt Practices Act statistics.

Some of the statistics are “inside baseball” like and other statistics (such as the long time periods associated with FCPA scrutiny or the general lack of individual enforcement actions in connection with most corporate enforcement actions) raise significant public policy issues and/or undermine government rhetoric.

The statistic discussed in this post fits all three categories: it is equal parts “inside baseball,” it raises significant public policy issues, it undermines government rhetoric, and moreover it is just plain strange.

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A Focus On DOJ Individual Actions

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This recent post focused on SEC individual FCPA actions in 2021 and historically. Today’s post highlights various facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2021 and historically.

The key word above is FCPA offenses.

Some in the FCPA space include enforcement actions containing non-FCPA charges (often money laundering charges against alleged “foreign officials” or with increasing frequency money laundering charges against alleged bribe payors – see here) related to an FCPA enforcement action as an individual FCPA enforcement action. While it is fine to track such enforcement actions, calling them FCPA enforcement actions is factually false.

Compared to corporate FCPA enforcement actions, tracking individual FCPA enforcement actions can be difficult because the DOJ does not publicly announce every individual enforcement action and/or certain matters are filed under seal. Moreover, and as relevant to this year’s statistics, the DOJ may originally file non-FCPA charges against certain individuals (complete with a press release announcing the action) but then subsequently file FCPA charges against the same individuals (without an announcing press release).

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DOJ FCPA Enforcement – 2021 Year In Review

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This recent post highlighted SEC Foreign Corrupt Practices Act enforcement against issuers in 2021.

Today’s post focuses on the other FCPA enforcement agency – the Department of Justice – and highlights various facts and figures relevant to DOJ FCPA enforcement in 2021 against business organizations. (See here for a similar post from 2020; here for a similar post from 2019; here for a similar post from 2018; here from 2017, here from 2016, here from 2015, here from 2014, here from 2013, here from 2012, here from 2011, and here from 2010).

Compared to prior years, certain of the year in review statistics below (like many from 2021) are less than enlightening given the small number of corporate enforcement actions in 2021.

Settlement Amounts and Specifics

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FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries

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As highlighted in this post, like prior years (see herehereherehere and here) much of the largeness of 2021 FCPA enforcement resulted from corporate enforcement actions against foreign companies.

Specifically, of the four corporate Foreign Corrupt Practices Act enforcement actions in 2021, four (100%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets or in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Of the net approximate $259 million in FCPA settlement amounts from 2021 corporate enforcement actions, $259 million (100%) was from enforcement actions against foreign companies.

Of the net approximate $2.78 billion in FCPA settlement amounts from 2020 corporate enforcement actions, approximately $910.5 million (33%) was from enforcement actions against foreign companies. (Note: the record setting $1.26 billion FCPA enforcement action against U.S. company Goldman Sachs significantly reduced this number from prior years).

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The “Foreign Officials” Of 2021

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A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2021?

This post highlights the alleged “foreign officials” from 2021 corporate DOJ and SEC FCPA enforcement actions. Compared to prior years, this year in review statistic (like many from 2021) is less than enlightening given the small number of corporate enforcement actions in 2021.

There were four core FCPA enforcement actions in 2021. Of the four actions, three (75%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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