Do some FCPA commentators just make sh*t up and hope nobody notices?
This Forbes article by Robert Anello is titled “FCPA Cops Back On The Beat: DOJ Touts Reenergized Enforcement Efforts,” is full of false and misleading information.
For instance, the article asserts: “In 2021 and 2022, Biden’s DOJ resolved a meager total of only eleven corporate and individual FCPA enforcement actions.”
Facts: In 2021 through Dec. 14, 2022 (the date the article was published) the DOJ announced a total of seven corporate enforcement actions and seventeen individuals were charged with FCPA offenses. This is a total of twenty-four corporate and individual enforcement actions.
The article states:
“[T]he Biden administration increasingly could rely on international cooperation to accelerate FCPA prosecutions going forward. Such cooperation can be driven by the millions of dollars paid out to cooperating countries in connection with DOJ’s coordinated resolutions.”
The notion that “millions of dollars [are] paid out to cooperating countries in connection with DOJ’s coordinated resolutions” is just plain absurd.
The article asserts:
“Do not expect a lull in FCPA enforcement in 2023. The Biden administration and DOJ officials continue to reiterate their commitment to FCPA enforcement, unlike the preceding administration, despite the small number of resolutions this year.
Although the pandemic and the prior administration’s priorities may have slowed down DOJ’s FCPA enforcement efforts of late, it certainly did not prevent the government from coordinating significant prosecutions and resolutions with foreign law enforcement authorities that have resulted in substantial benefits to the cooperating countries.”
The notion that the “preceding administration” (the Trump administration) was not committed to FCPA enforcement and/or that the “prior administration’s priorities may have slowed down DOJ’s FCPA enforcement efforts of late” is a narrative contradicted by facts.
Set forth below are number of core corporate FCPA enforcement actions 2010-2020.
Do these number suggest a lack of commitment or slow down in FCPA enforcement 2017-2020? In fact, in terms of settlement amounts 2020 set a record and before that 2019 set a record.
Individual FCPA enforcement actions by the DOJ 2017-2020 were also above historical averages as demonstrated by the below image.
In addition to the objective facts, individuals who worked at the DOJ (including during the Trump administration) have publicly stated as follows:
“I was at the Department for six or seven months after the Trump administration came in. There was very little change in FCPA enforcement. There was very little change in how the unit operated, in the resources made available to the unit, in how the cases were being handled. And since I have left, the cases that have come out have been in line in both form of resolution and size of fines as before. I’ve seen very little change.”
Add up the above facts and other information and my question is: do some FCPA commentators just make sh*t up and hope nobody notices? Do publications like Forbes fact check or provide any editorial oversight of published content?
I e-mailed Anello on December 15th about his Forbes article, but never heard back.
