As highlighted in this post, like prior years (see here, here, here, here and here) much of the largeness of 2021 FCPA enforcement resulted from corporate enforcement actions against foreign companies.
Specifically, of the four corporate Foreign Corrupt Practices Act enforcement actions in 2021, four (100%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets or in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Of the net approximate $259 million in FCPA settlement amounts from 2021 corporate enforcement actions, $259 million (100%) was from enforcement actions against foreign companies.
Of the net approximate $2.78 billion in FCPA settlement amounts from 2020 corporate enforcement actions, approximately $910.5 million (33%) was from enforcement actions against foreign companies. (Note: the record setting $1.26 billion FCPA enforcement action against U.S. company Goldman Sachs significantly reduced this number from prior years).
- of the 12 corporate enforcement actions from 2020, 5 (42%) were against foreign companies and of the net approximate $2.78 billion in settlement amount 33% was from enforcement actions against foreign companies.
- of the 14 corporate enforcement actions from 2019, 8 (57%) were against foreign companies and of the net approximate $2.65 billion in settlement amounts 83% was from enforcement actions against foreign companies.
- of the 17 corporate enforcement actions from 2018, 9 (53%) were against foreign companies and of the net approximate $1 billion in settlement amounts 72% was from enforcement actions against foreign companies.
- of the 13 corporate enforcement actions from 2017, 5 (38%) were against foreign companies and of the net $1.13 billion in settlement amounts 90% was from enforcement actions against foreign companies.
- of the 27 corporate enforcement actions from 2016, 11 (41%) were against foreign companies and of the net $2.27 billion in settlement amounts 63% was from enforcement actions against foreign companies.
All of the foreign companies which resolved 2021 FCPA enforcement actions were from peer OECD Convention countries (Germany, United Kingdom, and Switzerland). The question should thus be asked whether these FCPA enforcement actions represented a proper use of the FCPA – at least from a policy standpoint.
In other words, what legitimate U.S. law enforcement interests are implicated when for example:
- A German company such as Deutsche Bank interacts with alleged foreign officials in Abu Dhabi and Saudi Arabia;
- A U.K. company such as Amec Foster Wheeler interacts with alleged foreign officials in Brazil;
- A U.K. company such as WPP interacts with alleged foreign officials in India, China, Brazil and Peru; and
- A Swiss company such as Credit Suisse interacts with alleged foreign officials in Mozambique.
All of these 2021 FCPA enforcement actions were against companies headquartered in countries that, like the U.S., are parties to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention).
Given this reality, as well as the specific provision in Article 4 of OECD Convention that “when more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution,” can it truly be said that the U.S. was an appropriate jurisdiction to prosecute these foreign companies for alleged interactions with non-U.S. officials?
As highlighted in this prior post, in 2017 DOJ officials stated that they “are working harder than ever to coordinate with global partners and avoid what some have termed “piling on” in attendant global resolutions.” As stated by the Principal Deputy Chief of the DOJ Fraud Section:
“Coordination with foreign countries will continue, and that number of coordinated resolutions will grow, including with new countries. This is important for several reasons. First and foremost, it is fair to companies. It encourages companies to cooperate across the board, because we understand that, at the end of a case, money paid out is derived from one pie. A resolving company should not have piled upon it duplicative fines via separate resolutions that do not credit one another. Although the “piling on” problem is not entirely solved by doing this (other countries may certainly try to reach additional resolutions), our efforts do mitigate this problem, and we are trying to do better in this regard.”
As highlighted in this prior post, in 2018 the DOJ announced a “non-piling” policy stating:
“The Department should … endeavor, as appropriate, to coordinate with and consider the amount of fines, penalties, and/or forfeiture paid to other federal, state, local, or foreign enforcement authorities that are seeking to resolve a case with a company for the same misconduct.”
Granted, in certain of the enforcement actions highlighted above there were credits or offsets in terms of U.S. FCPA settlement amounts for related foreign law enforcement actions. Yet, as highlighted in prior posts here, here and here “piling on” is precisely what the DOJ is doing when it brings an FCPA enforcement action against a foreign company located in an OECD Country that is also subject to prosecution in its “home” jurisdiction.
The bigger question is whether the above examples should have been instances in which the U.S. simply backed away because of the related foreign law enforcement action?
For a prior post posing the same general question see here ” “non-U.S. efforts to prosecute overseas bribery are hampered by the absence of clear, credible statements from U.S. prosecutors that they will desist from prosecuting if a local prosecutor does so in good faith” as well as FCPA Flash podcasts here (Bruce Yannett – Debevoise & Plimpton), here Robert Luskin (Paul Hastings) and here David Bitkower (Jenner and Block and former DOJ Principal Deputy Assistant Attorney General for the Criminal Division).
In the minds of some, FCPA enforcement has become a convenient cash cow for the U.S. government. The above enforcement actions in 2021 against foreign companies, which resulted in approximately $259 million flowing into the U.S. treasury, only amplify these concerns.
From a historical perspective, it is worth noting that part of the FCPA reform discussion in the 1980’s were bills – introduced by Democrats – seeking to waive the FCPA’s provisions “in the case of any country which the Attorney General has certified to have (1) effective bribery or corruption statutes; and (2) an established record of aggressive enforcement of such statutes.” (See S. 1797, Competitive America Trade Reform Act of 1985, introduced on October 29, 1985 by Senator Gary Hart (D-CO) and H.R. 3813, Competitive America Trade Reform Act of 1985, introduced on November 21, 1985 by Representative Vic Fazio (D-CA)).
While waiving the FCPA’s provisions – as those bills sought to do – does not seem like a good idea, perhaps the time has come with the maturity of the OECD Convention – for U.S. enforcement agencies to adopt a policy of not bringing FCPA enforcement actions against foreign companies from peer OECD Convention countries.
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