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This Week’s DOJ FCPA Enforcement Action Will Be Counted As A Biden Administration Enforcement Action And Should Not Be “Discounted”

just saying

As touched upon in this prior post, during the Trump administration certain FCPA commentators appeared to become unhinged and were saying some ridiculous things (see here – “the Foreign Corrupt Practices Act is likely to be substantially weakened, perhaps even repealed” and “the era of vigorous FCPA enforcement … is over.”).

Once it become clear that FCPA enforcement remained robust during the Trump administration – and indeed was above recent historical averages in terms of both corporate and individual enforcement as well as set records in terms of overall yearly FCPA settlement amounts, – some commentators shifted gears and suggested that none of this really mattered because certain FCPA enforcement actions were initiated, and in the so-called pipeline, prior to the Trump administration.

Given that corporate FCPA scrutiny tends to last approximately four years on average (see here), such statements were partially and technically true. However, I don’t recall commentators ever discounting FCPA enforcement actions during the first Obama administration even though many of them initiated during the Bush administration nor do I recall commentators ever discounting FCPA enforcement actions during the first Bush administration even though many of them initiated during the Clinton administration.

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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 2020 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, approximately 75% 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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It Is Absolute BullSh*t To Assert That “Companies Are Now Paying An Average Of Half A Billion Dollars To Settle FCPA Enforcement Actions”

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This FCPA Blog post asserts “Companies are now paying an average of half a billion dollars to settle FCPA enforcement actions.”

This is absolute bullsh*t.

More FCPA fake news.

Set forth below are the actual FCPA settlement amounts from 2020 corporate enforcement actions.

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The Origins Of 2020 Corporate Enforcement Actions

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This recent post compared corporate FCPA enforcement actions in 2020 to prior years. However, before a Foreign Corrupt Practices Act enforcement action is announced, scrutiny must first arise.

This post highlights the origins of the 12 core corporate enforcement actions in 2020. (See here for a similar post highlighting the origins of 2019 corporate enforcement actions; here for 2018 corporate enforcement actions; here for 2017 corporate enforcement actions and here for 2016 corporate enforcement actions).

As highlighted in the post, like prior years, 2020 corporate enforcement actions originated in a variety of ways from voluntary disclosures, to pro-active government investigations, to foreign law enforcement investigations.

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Corporate FCPA Enforcement In 2020 Compared To Prior Years

Statistical Analysis

This post, the first in a weeks-long statistical feast on FCPA Professor, compares corporate FCPA enforcement in 2020 to prior years. As reflected in the post, measured in terms of actual settlement amounts, 2020 was the largest in FCPA history as the DOJ/SEC collected approximately $2.78 billion (eclipsing the approximately $2.65 billion collected in 2019) in corporate enforcement actions.

Keep the numbers in this post in mind when you see other 2020 FCPA enforcement statistics that use creative and haphazard counting methods or fail to use accurate or consistent math. (See here for instance – ridiculously asserting that the DOJ/SEC “imposed financial penalties totaling a record $6.4 billion” in 2020).

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