This recent post highlighted SEC Foreign Corrupt Practices Act enforcement against issuers in 2022.
Today’s post focuses on the other FCPA enforcement agency – the Department of Justice – and highlights various facts and figures relevant to DOJ FCPA enforcement in 2022 against business organizations. (See here for a similar post from 2021; here for a similar post from 2020; here for a similar post from 2019; here for a similar post from 2018; here from 2017, here from 2016, here from 2015, here from 2014, here from 2013, here from 2012, here from 2011, and here from 2010).
Settlement Numbers and Amounts
In 2022, the DOJ brought 7 corporate enforcement actions.
By comparison:
- in 2021 the DOJ brought 2 corporate enforcement actions;
- in 2020 the DOJ brought 8 corporate FCPA enforcement actions;
- in 2019 the DOJ brought 8 corporate FCPA enforcement actions;
- in 2018 the DOJ brought 8 corporate FCPA enforcement actions;
- in 2017 the DOJ brought 9 corporate FCPA enforcement actions;
- in 2016 the DOJ brought 13 corporate FCPA enforcement actions;
- in 2015 the DOJ brought 2 corporate FCPA enforcement actions;
- in 2014 the DOJ brought 7 corporate FCPA enforcement actions;
- in 2013 the DOJ brought 7 corporate FCPA enforcement actions;
- in 2012 the DOJ brought 9 corporate FCPA enforcement actions;
- in 2011 the DOJ brought 11 corporate FCPA enforcement actions;
- in 2010 the DOJ brought 17 corporate FCPA enforcement actions.
(Note: these figures use the “core” approach to FCPA statistics – see here for the prior post – an approach also endorsed by the DOJ – see here).
In the 7 corporate FCPA enforcement actions from 2022, the DOJ collected approximately $652 million.
(Note: this figure represents net FCPA settlement amounts after accounting for various credits or deductions in certain enforcement actions for related law enforcement actions).
By comparison:
- in the 2 corporate FCPA enforcement actions from 2021, the DOJ collected approximately $87.2 million.
- in the 8 corporate FCPA enforcement actions from 2020, the DOJ collected approximately $2.10 billion;
- in the 8 corporate FCPA enforcement actions from 2019, the DOJ collected approximately $1.62 billion;
- in the 8 corporate FCPA enforcement actions from 2018, the DOJ collected approximately $618 million;
- in the 8 corporate FCPA enforcement actions from 2017, the DOJ collected approximately $845 million;
- in the 13 corporate FCPA enforcement actions from 2016, the DOJ collected approximately $1.17 billion;
- in the 2 corporate FCPA enforcement actions from 2015, the DOJ collected approximately $24.2 million;
- in the 7 corporate FCPA enforcement actions from 2014, the DOJ collected approximately $1.25 billion;
- in the 7 corporate FCPA enforcement actions from 2013, the DOJ collected approximately $420 million;
- in the 9 corporate FCPA enforcement actions from 2012, the DOJ collected approximately $142 million;
- in the 11 corporate FCPA enforcement actions from 2011, the DOJ collected approximately $355 million;
- in the 17 corporate FCPA enforcement actions from 2010, the DOJ collected approximately $870 million;
Corporate DOJ FCPA enforcement in 2022 ranged from $443 million (Glencore) to $15.3 million (GOL).
Corporate v. Individual Prosecutions
In the 7 corporate DOJ enforcement actions in 2022, 1 (14%) has resulted, at present, in any related DOJ FCPA charges.
Stay tuned for future posts specifically about DOJ individual FCPA enforcement actions in 2022 and historically.
Resolution Vehicles
The 7 corporate FCPA enforcement actions by the DOJ in 2022 involved: 4 deferred prosecution agreements; 2 so-called declinations with disgorgement; and 1 plea agreement. Thus, 86% of DOJ corporate FCPA enforcement in 2022 involved, in whole or in part, an alternative resolution vehicle (NPA, DPA or declination with disgorgement).
By comparison:
- in 2021, 100% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2020, 75% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2019, 100% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2018, 100% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2017, 100% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2016 92% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2015 100% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2014 71% of DOJ corporate enforcement actions involved alternative resolution vehicles;
- in 2013, 100% of corporate DOJ enforcement actions involved alternative resolution vehicles;
- in 2012 100% of corporate DOJ enforcement actions involved alternative resolution vehicles;
- in 2011 82% of corporate DOJ enforcement actions involved alternative resolution vehicles;
- in 2010 94% of corporate DOJ enforcement actions involved alternative resolution vehicles.
Voluntary Disclosures
Of 7 DOJ corporate enforcement actions in 2021, 3 (43%) were the result of a voluntary disclosure.
By comparison:
- in 2021, 0% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2020, 13% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2019, 37% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2018 25% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2017 33% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2016 38% of DOJ corporate enforcement actions were the result of a voluntary disclosure;
- in 2015, 50% of corporate FCPA enforcement actions were the result of a voluntary disclosure;
- in 2014, 29% of corporate FCPA enforcement actions were the result of a voluntary disclosures;
- in 2013, 57% of corporate FCPA enforcement actions were the result of a voluntary disclosure or the direct result of a related voluntary disclosure;
- in 2012, 78% of corporate FCPA enforcement actions were the result of a voluntary disclosure or casually related to previous voluntary disclosures;
- in 2011, 73% of corporate FCPA enforcement actions were the result of corporate voluntary disclosures.
Monitors
Of the 7 corporate FCPA enforcement actions in 2022, 2 (29%) resulted in a formal corporate monitor imposed by the DOJ.
By way of comparison:
- in 2021 0% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2020 0% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2019 50% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2018 12% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2017 33% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2016 54% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2015 50% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2014 14% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2013 57% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2012 33% of corporate FCPA enforcement actions resulted in a formal corporate monitor;
- in 2011 9% of corporate FCPA enforcement actions resulted in a formal corporate monitor; and
- in 2010 41% of corporate FCPA enforcement actions resulted in a formal corporate monitor.
(Note: in certain enforcement actions the DOJ concluded that a formal monitor was unnecessary because the company already had monitoring requirements imposed upon it as a result of a related foreign law enforcement action).
This remainder of this post provides an overview of corporate DOJ FCPA enforcement in 2022.
JLT (March 18th)
See here for the prior post.
Charges: None. Declination with Disgorgement letter references violations of the FCPA’s anti-bribery provisions.
Resolution Vehicle: Declination with Disgorgement.
Guidelines Range: Not specified.
Settlement: Approximately $29 million. (As stated by the DOJ: “The Department agrees to credit the Disgorgement Amount against the amount JLT pays to the U.K. Serious Fraud Office (“SFO”), up to 100 percent of the Disgorgement Amount, so long as JLT pays the Disgorgement Amount to the SFO pursuant to the Company’s separate resolution with the SFO that addresses the same underlying conduct.”).
Origin: Voluntary disclosure.
Monitor: No
Individuals Charged: No
Glencore (May 24th)
See here and here for prior posts.
Charges: Conspiracy to violate the anti-bribery provisions.
Resolution Vehicle: Criminal information charges resolved through a plea agreement.
Guidelines Range: $504 million to $1.008 billion
Settlement: Net $443 million (after credits for related foreign law enforcement settlements).
Origin: DOJ subpoena.
Monitor: Yes
Individuals Charged: Yes
Stericycle (April 20th)
See here and here for prior posts.
Charges: Conspiracy to violate the anti-bribery provisions and the books and records provision.
Resolution Vehicle: Criminal information resolved through a deferred prosecution agreement.
Guidelines Range: $70 – $140 million
Settlement: Net $35 million (after credit for related foreign law enforcement settlement).
Origin: SEC subpoena / DOJ inquiry
Monitor: Yes
Individuals Charged: No
Gol Linhas Aereas Inteligentes S.A. (Sept. 15th)
See here and here for prior posts.
Charges: Conspiracy to violate the anti-bribery and books and records provisions.
Resolution Vehicle: Criminal information charges resolved through a deferred prosecution agreement.
Guidelines Range: $116 million to $232 million
Settlement: Net $15.3 million (based on inability to pay and a credit for a related foreign law enforcement settlement).
Origin: Foreign law enforcement action.
Monitor: No
Individuals Charged: No
ABB (Dec. 2nd)
See here and here for prior posts.
Charges: ABB Management Services Ltd. (Switzerland) and ABB South Africa (Pty) Ltd (South Africa) were charged in criminal informations with conspiracy to violate the FCPA’s anti-bribery provisions; ABB was charged with conspiracy to violate the FCPA’s anti-bribery provisions, conspiracy to violate the FCPA books and records provisions, and substantive violations of the FCPA.
Resolution Vehicle: The charges against ABB Management Services and ABB South Africa were resolved through a plea agreement and the charges against ABB were resolved through a deferred prosecution agreement.
Guidelines Range: $240 million – 480 million.
Settlement: Net $72.5 million (after offsets for related foreign law enforcement investigations and SEC settlement).
Origin: As stated by the DOJ: “[W]ithin a very short time of learning of the misconduct, the Company contacted the Fraud Section and scheduled a meeting to discuss matters under investigation by the Fraud Section and the Company. The Company did not specifically identify the South Africa misconduct in that meeting request, but it disclosed the South Africa misconduct during the scheduled meeting, subsequently presented evidence to the Offices that it intended to disclose the misconduct related to South Africa during the scheduled meeting and did not know of any imminent media reports when the meeting was scheduled. However, before the scheduled meeting occurred and prior to making any such disclosure to the Fraud Section, a media report was published related the misconduct.”
Monitor: No
Individuals Charged: No
Honeywell (Dec. 19th)
See here and here for prior posts.
Charges: Criminal information charging UOP LLC with conspiracy to violate the FCPA’s anti-bribery provisions.
Resolution Vehicle: Deferred prosecution agreement.
Guidelines Range: $105.6 million to $211.3 million
Settlement: Net $39.6 million (after offsets for related foreign law enforcement investigations and SEC settlement).
Origin: Foreign law enforcement investigations.
Monitor: No
Individuals Charged: No
Safran (Dec. 21st)
See here for a prior post.
Charges: None.
Resolution Vehicle: A so-called declination with disgorgement.
Guidelines Range: Not mentioned in the letter agreement.
Settlement: $17.2 million.
Origin: Voluntary disclosure.
Monitor: No
Individuals Charged: No
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