Friday Roundup
A quite September, to FCPA Inc., Ng commentary, and discontinued.
It’s all here in the Friday roundup.
Quiet September
As highlighted in this prior post, September has historically been a very active month for FCPA enforcement as the SEC’s fiscal year ends on September 30th.
While the SEC did announce the WPP enforcement action on September 24th (see here and here for prior posts), for the second consecutive year, September FCPA enforcement was below historical norms.
What Do The Numbers Look Like?
This recent Wall Street Journal article focused on individual DOJ enforcement actions in connection with corporate enforcement actions in the aftermath of the so-called Yates Memo (September 2015) in which the DOJ was supposedly going to place a renewed emphasis “in any corporate case of holding individual wrongdoers accountable.”
The article noted: “between 2016 and 2020, [the DOJ] prosecuted employees in 37% of 146 cases where companies received leniency through so-called deferred or non-prosecution agreements.”
What do the numbers look like specifically in the FCPA context?
This Week’s DOJ FCPA Enforcement Action Will Be Counted As A Biden Administration Enforcement Action And Should Not Be “Discounted”
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ridiculous things (see here – “the Foreign Corrupt Practices Act is likely to be substantially weakened, perhaps even repealed” and “the era of vigorous FCPA enforcement … is over.”).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.
DOJ Individual Actions: The Strange Public – Private Divide
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.
It Is Absolute BullSh*t To Assert That “Companies Are Now Paying An Average Of Half A Billion Dollars To Settle FCPA Enforcement Actions”
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.