These pages track all sorts of Foreign Corrupt Practices Act statistics.
Some of the statistics are “inside baseball” like and other statistics (such as the long time periods associated with FCPA scrutiny or the general lack of individual enforcement actions in connection with most corporate enforcement actions) raise significant public policy issues and/or undermine government rhetoric.
The statistic discussed in this post fits all three categories: it is equal parts “inside baseball,” it raises significant public policy issues, it undermines government rhetoric, and moreover it is just plain strange.
This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2022 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, 76% 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.
Of the 219 individuals charged by the DOJ with FCPA criminal offenses since 2006, 161 of the individuals (approximately 75%) were employees or otherwise affiliated with private business organizations. This is a striking statistic given that 103 of the 136 corporate DOJ FCPA enforcement actions since 2006 (approximately 75%) were against issuers.
In the 33 private business organization DOJ FCPA enforcement actions since 2006, individuals were charged in connection with 13 of those actions (40%). In contrast, in the 103 issuer DOJ FCPA enforcement actions since 2006, individuals were charged in connection with 25 of those cases (24%).
Since 2012 there have been only 19 instances of an individual associated with an issuer being criminally charged with FCPA violations: Garth Peterson (Morgan Stanley), Alain Riedo (Maxwell Technologies), Vicente Garcia (SAP), Samuel Mebiame (Och-Ziff), Anthony Mace and Robert Zubiate (SBM Offshore), Colin Steven (Embraer), Roger Ng and Tim Leissner (Goldman Sachs), Gordon Coburn and Steven Schwartz (Cognizant), Andrew Pearse, Surjan Singh and Detelina Subeva (Credit Suisse), Bekhzod Akhmedov (MTS), Yanliang Li and Hongwei Yang (Herbalife), Jose Grubisich (Braskem) and Zwi Skornicki (TechnipFMC), Yanliang Li and Hongwei Yang (Herbalife), Afework “Affe” Bereket (Ericsson), Anthony Stimler (Glencore), Frederick Cushmore Jr. and Hunter Hobson (Corsa Coal), and Asante Berko (Goldman Sachs)
8 of the 19 instances have involved foreign issuers. Stated differently, since 2012 there have been just a few instances of individuals associated with a U.S. issuer being criminally charged with FCPA offenses.
In short, a DOJ FCPA enforcement against a private business organization is approximately 2 times more likely to have a related DOJ FCPA criminal prosecution of an individual compared to a DOJ FCPA enforcement action against an issuer and FCPA enforcement actions against individuals associated with U.S. issuers are rather rare.
