The “Foreign Officials” Of 2018
A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2018?
This post highlights the alleged “foreign officials” from 2018 corporate DOJ and SEC FCPA enforcement actions.
There were 17 FCPA core corporate enforcement actions in 2018. Of the 17 enforcement actions 9 (53%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs) with an additional 2 actions (12%) involving, in whole or in part, individuals associated with foreign health care systems.
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 2018 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 80% 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.
A Focus On DOJ Individual Actions
This recent post focused on SEC individual FCPA actions in 2018 and historically and this post highlights certain facts and figures concerning the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act violations in 2018 and historically.
As highlighted numerous times on FCPA Professor over the past several years, the DOJ frequently talks about the importance of individual criminal prosecutions.
In 2018, DOJ officials stated: “focusing on individual wrongdoers is an important aspect of the Department’s FCPA program” and as follows:
A Focus On SEC Individual Actions
This previous post highlighted various facts and figures from 2018 SEC FCPA enforcement actions against issuers.
As highlighted in the prior post, of the 14 corporate SEC FCPA enforcement actions in 2018, 1 (7%) has involved, at present, related SEC FCPA charges or findings against company employees.
In 2018, the SEC charged or found that three individuals violated the FCPA: Joo Hyun Bahn (associated with Colliers International Group); Patricio Contesse Gonazlez (associated with SQM which resolved an FCPA enforcement action in 2017); and Paul Margis (associated with Panasonic Avionics). (Note: the SEC’s enforcement action against Takeshi Uonaga (Panasonic Avionics former CFO) is not included in FCPA enforcement statistics for the simple reason that this was a revenue recognition matter and thus a non-FCPA FCPA enforcement action).
The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2018
This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2018.
Continuing with the 2018 FCPA statistical feast, this post follows the chronology of scrutiny to enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.
That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4.25 years was the approximate median length of time companies that resolved FCPA enforcement actions in 2018 were under scrutiny.