Why Has The DOJ Stopped Civil Enforcement Of The FCPA?
You’ve no doubt heard the line before: the DOJ is in charge of criminal enforcement of the Foreign Corrupt Practices Act and the SEC is in charge of civil enforcement of the FCPA.
Generally, this is true as the SEC may not criminally enforce the FCPA.
However, the FCPA specifically authorizes the DOJ to civilly (not just criminally) enforce the FCPA against non-issuers.
Indeed, between 1991 and 2001 approximately 35% of all DOJ corporate FCPA enforcement actions were civil actions. However, the last time the DOJ invoked this express statutory remedy was in 2001 and the question is posed: why has the DOJ stopped civilly enforcing the FCPA?
This Week On FCPA Professor
FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”
Set forth below are the topics discussed this week on FCPA Professor.
Once again, the Foreign Extortion Prevention Act (a bill which seeks to address the “demand” side of foreign bribery) was introduced in Congress. (See here). This post poses several questions about the bill and this post demonstrates how a “demand” side prohibition could better be accomplished through amending the FCPA (not the domestic bribery statute as the Foreign Extortion Prevent Act seeks to do).
FCPA Professor Turns 14
In July 2009, FCPA Professor was launched with this simple mission statement.
Fourteen years and approximately 4,100 posts later, FCPA Professor is still here and the mission remains the same.
What started out in 2009 as a “blog” has turned into a comprehensive website that has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.” Along the way, FCPA Professor has been named a Top Law Blog for in-house counsel by Corporate Counsel, a Top 25 Business Law Blog by LexisNexis, and a top 100 Legal Blog by the American Bar Association.
Who Knew? Prior To The 2019 Ericsson Enforcement Action, There Was Already An Enforcement Action Against A Former Ericsson Executive
One odd aspect of Foreign Corrupt Practices Act enforcement is that some enforcement actions are accompanied by all the bells and whistles the DOJ can find, while others – well – aren’t even mentioned at all by the DOJ.
Search the DOJ’s FCPA website and you will not find an FCPA enforcement action against Carlo Alloni (an Italian citizen and former Ericsson executive).
But there was one.
In May 2018, the DOJ charged Alloni (picture from his LinkedIn profile) with conspiracy to violate the FCPA’s anti-bribery provisions.
Supreme Court Once Again Bench Slaps DOJ
A post of this nature has appeared on these pages approximately twenty times.
Even though the current Supreme Court is often ideologically divided, the Court has shown remarkable consistency in recent years in rejecting (often times unanimously) overly expansive interpretations of a criminal statute by the Department of Justice.
This prior post highlighted two Supreme Court decisions from May and this post highlights a Supreme Court decision earlier this month.
Justice Sonia Sotomayor authored the unanimous decision in Dubin v. U.S. and the decision begins as follows: