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COVID – A One Year Rewind

One year ago this week seems like yesterday, yet at the same time seems like years and years ago.

Last year around this time, it was hard not to think about COVID from a profession standpoint and any potential impact on FCPA compliance and enforcement. (See here [1] for a roundup of some of the earliest articles, etc).

Several COVID-related posts appeared on FCPA Professor as well approximately one year ago.

In this post [2] titled “The Difference Between The FCPA (The Statute) And The FCPA As Enforced During The COVID-19 Crisis,” I shared my own “two cents” that FCPA issues in the midst of COVID-19 once again demonstrates the difference between the FCPA (the statute as written by Congress and interpreted by courts) and the FCPA as enforced by the DOJ and/or SEC. The post focused on actual legal authority regarding the corrupt intent and obtain and retain business elements of the FCPA’s anti-bribery provisions as well as the FCPA’s facilitating payments exception.

This post [3] was titled “It’s Important To Remember That The Internal Controls Standard Is “Reasonable” and began by noting the legitimate concerns that during COVID doing risk assessments, due diligence of third parties, monitoring of third parties, in-country audits, and a host of other internal controls “best practices” have become difficult if not practically impossible. To some, this was a “perfect storm” that Foreign Corrupt Practices Act violations were lurking. However, the post encouraged compliance professionals to take a deep breath because the internal controls standard is “reasonable” – a term that is used throughout the law and contemplates a variety of factors including the circumstances in which conduct occurs. As highlighted in the post, this concept specifically finds grounding in the FCPA itself, its legislative history, FCPA judicial decisions, and even prior FCPA enforcement agency guidance.

This post [4] titled “The Impact Of COVID-19 On FCPA Enforcement,” predicted that FCPA enforcement in 2020 was likely going to be below historical averages in terms of the number of enforcement actions because of COVID. This turned out to be true as 2020 had 12 “core” corporate actions compared to 14, 17, 13, and 27 in the most recent previous years. (See here [5]). Given COVID’s impact on the grand jury process, this also turned out to be true in terms of DOJ individual enforcement actions as 2020 had 15 individual FCPA enforcement actions compared to 26 in 2019.

This post [6] titled “Assessing The Narrative That FCPA Enforcement Will Increase Post Covid-19 Crisis, Because That’s What Happened Post-Financial Crisis” debunked this narrative because there is no evidence that FCPA enforcement increased circa 2010-2012 because of the financial crisis.