Does The SEC Really Even Need A Specific FCPA Unit?
In fiscal year 2010, the Securities and Exchange Commission created a specialized unit (one of only five in its enforcement division “dedicated to particular highly specialized and complex areas of securities law“) devoted to enforcing the FCPA.
The question arises however: does the SEC really even need a specific FCPA unit?
The below post highlights how, based on the SEC’s own enforcement statistics, FCPA enforcement actions comprise a minuscule percentage of its overall enforcement actions as well as other quantitative and qualitative factors relevant to the question posed.
In Terms Of Settlement Amounts, 2020 FCPA Enforcement Has Set An All-Time Record
Last year was a record-breaking year in terms of Foreign Corrupt Practices Act settlement amounts as the DOJ/SEC collected approximately $2.65 billion.
With this week’s record-setting $1.66 billion net FCPA settlement involving Goldman Sachs, 2020 has eclipsed 2019 as the DOJ/SEC are poised to collect $2.66 billion in FCPA settlement amounts. This amount is likely to grow with approximately two months left in 2020 as the end of the year historically is an active period for FCPA enforcement.
The Top Ten List Of Corporate FCPA Settlements
Yesterday’s net $1.66 billion Foreign Corrupt Practices Act settlement involving Goldman Sachs is the largest in FCPA history.
This post highlights the current top ten corporate FCPA settlements of all-time actually secured by U.S. law enforcement.
This list is calculated after consistently accounting for certain credits or deductions in several enforcement actions involving foreign companies and/or related foreign law enforcement actions.
Disclosed FCPA Investigations – A Mostly Meaningless Statistic
There are all sorts of Foreign Corrupt Practices Act statistics one could tally.
Some are meaningful and some are mostly meaningless.
Tracking disclosed FCPA investigations is mostly meaningless for the reasons discussed below. Drafting articles around this statistic to draw judgments about FCPA enforcement and related issues (see here and here) is absurd.
The Percentage Of Corporate DOJ And SEC FCPA Enforcement Actions That Result From A Voluntary Disclosure
For at least 15 years the government has encouraged business organizations to voluntary disclosure conduct that violates the Foreign Corrupt Practices Act.
In more recent years, in 2012 the government sought in the FCPA Guidance to entice business organizations to voluntarily disclose by, among other things, highlighting six “anonymized examples of matters DOJ and SEC have declined to pursue” where a common thread was voluntary disclosure. In April 2016, it was the DOJ’s pilot program, an effort – in the words of the DOJ – to “encourage voluntary corporate self-disclosure.” Thereafter, it was the November 2017 DOJ FCPA Corporate Enforcement policy which – in the words of the DOJ – was intended to provide “guidance and greater certainty for companies struggling with the question of whether to make voluntary disclosures of wrongdoing…”
But what do the numbers show? What percentage of DOJ and SEC enforcement actions are the result of a voluntary disclosure? The below post provides the answers.