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This Is Why FCPA Inc. Needs A Common Language

For years, these pages have highlighted the need for a Foreign Corrupt Practices Act common language as to the basic question of “what is an FCPA enforcement action?” (See here [1]here [2]here [3]here [4]).

This article [5] titled “A Common Language to Remedy Distorted FCPA Enforcement Statistics” exposes in detailed fashion various distorted FCPA enforcement statistics. As highlighted in the article, the absence of a FCPA common language has numerous negative effects including infecting nearly all FCPA enforcement statistics.

The most reliable and accurate way to keep FCPA enforcement statistics is by using the “core” approach which focuses on unique instances of FCPA scrutiny. Using this approach, there were 12 corporate FCPA enforcement actions in 2020 that resulted in approximately $2.78 billion in net FCPA settlement amounts – the largest in FCPA history. (See here [6]).

The core approach does not distort FCPA enforcement statistics by double counting parallel DOJ and SEC actions involving the same core conduct announced on the same day nor does the core approach distort FCPA enforcement statistics by separately counting the sometimes unique ways the DOJ slices and dices corporate conduct between parent companies and subsidiaries. As highlighted in the above article, the core approach to tracking FCPA enforcement has been endorsed by the DOJ and is a commonly accepted method used to track enforcement in other areas of law.

With each passing year there seems to be a general consensus around the core approach. For instance, in several year end reviews several FCPA Inc. participants also counted 12 core corporate enforcement actions and/or $2.78 in net FCPA settlement amounts.

From Debevoise & Plimpton’s FCPA Update [7]:

“In 2020, U.S. authorities announced the resolution of 12 corporate enforcement actions”

“U.S. monetary recovery in FCPA cases reached an all-time high of nearly $2.8 billion.”

From Gibson Dunn’s 2020 Year-End FCPA Update [8]:

“Corporate fines in FCPA cases reached a new height of $2.78 billion.”

From Jones Day’s FCPA 2020 Year in Review [9]:

“2020 was a banner year for FCPA enforcement as well. The DOJ and the SEC resolved 12 corporate FCPA cases and collected a record $2.78 billion in fines, penalties, disgorgement, and interest.”

Further noting 12 “DOJ and SEC Corporate FCPA Resolutions.”

From Covington [10]:

“We saw several record-setting fines as U.S.-recovered penalties from corporate resolutions totaled more than $2.75 billion—the highest on record.”

Charting 12 corporate enforcement actions.

Yet as highlighted below, once again various FCPA Inc. participants published 2020 FCPA enforcement statistics that were all over the map in various ways.

From Paul Weiss’s FCPA Enforcement and Anti-Corruption Developments 2020 Year in Review [11]:

“In 2020, the DOJ and the SEC resolved a combined 16 enforcement actions against business entities”

“The DOJ and the SEC assess[ed] a record-breaking combined total of nearly $2.8 billion in corporate penalties in FCPA settlements …”

From Steptoe’s FCPA/Anti-Corruption Developments: 2020 Year in Review [12]:

“Twelve companies faced charges from the DOJ, the SEC, or both in 2020.”

“The aggregate dollar value of monetary sanctions imposed by the DOJ and SEC8 for FCPA-related offenses in 2020 was just over $6 billion with approximately half of that, approximately $3 billion, ultimately payable to the US Treasury.”

From WilmerHale [13]:

“The 2020 settlements resulted in US authorities actually collecting approximately $2.8 billion for FCPA financial penalties”

Referencing 16 “corporate enforcement actions”

From Shearman & Sterling’s FCPA Digest [14]:

“In 2020, the DOJ and SEC resolved eighteen corporate enforcement actions.”

“Eighteen corporate enforcement actions, with total sanctions of approximately $8.24 billion, making 2020 a record-shattering year in terms of the amount of FCPA enforcement penalties.”

From the FCPA Blog [15]:

“In 2020, the DOJ and SEC brought FCPA enforcement actions against 12 companies and imposed financial penalties totaling a record $6.4 billion.”

Moreover, see here [16] for the absolute bullsh*t assertion by the FCPA Blog that “companies are now paying an average of half a billion dollars to settle FCPA enforcement actions.”

It is fine to track payments made to foreign authorities for violations of foreign anti-bribery and corruption laws, but then track this as a “global settlement amount” and not an FCPA settlement amount for the obvious reason that foreign authorities don’t enforce the FCPA!

Moreover, since when is the dollar amount that law enforcement could theoretically assess for a legal violation a meaningful measure of enforcement activity? For instance, when reporting speeding ticket revenue for a given year/quarter, etc. is a village, town, county going to report speeding ticket fines actually paid or the amount that law enforcement could have theoretically assessed for each speeding violation given the actual speed of the driver?

There are some things in the FCPA space that no doubt are challenging or complex.

However, the basic questions of what is an FCPA enforcement action and how much money the U.S. government actually collects in FCPA enforcement actions should not be.

The wide range of FCPA enforcement statistics published by various FCPA Inc. participants should result in distrust and lack of credibility for FCPA Inc. as a niche industry (which it most certainly is).

For instance, would you trust and view the medical industry as credible if you visited five physicians and got five different readings of what should be an objective measure of your health? Would you trust and view the plumbing industry as credible if five plumbers came to your house and gave you five different readings of what should be an objective measure of your water system?

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