The most recent corporate FCPA enforcement action was a so-called declination with disgorgement involving Liberty Mutual.
Declinations with disgorgement were invented and added to the buffet of options the DOJ has created to resolve FCPA enforcement actions (non-prosecution agreements and deferred prosecution agreements were introduced to FCPA enforcement circa 2004) by the Obama administration and first used in 2016.
Since then, the DOJ has used this alternative resolution vehicle to resolve 20 corporate FCPA enforcement actions. (See here – note the HealthSouth and Proterial Cable America enforcement actions were not FCPA matters).
These letter agreements – not subjected to any judicial scrutiny – are typically 2-3 pages with factual allegations or findings usually consisting of just 1-3 sentences.
In many instances, including the recent Liberty Mutual enforcement action – it is difficult to discern what actual, viable FCPA violations the DOJ “declined” to prosecute.
As the DOJ has rightly acknowledged, a business organization can only act through real human beings and an interesting data point to consider regarding the DOJ’s use of so-called declinations with the disgorgement is the following.
Just 2 of the 20 (10%) enforcement actions have involved related FCPA charges against individuals.
Those two actions are Cognizant and Corsa Coal.
As discussed in this prior post, the DOJ’s enforcement action against former Cognizant executives Gordon Coburn and Steven Schwartz was legally and factually flawed and ultimately dismissed by the DOJ in April 2025.
In the Corsa Coal “declination with disgorgement” the DOJ also charged Frederick Cushmore Jr. (who pleaded guilty) and Charles Hunter Hobson whose trial has yet to occur.
