Another (unfortunate) installment of “from where does this sh*t originate”? (See here for the prior post).
This recent Forbes piece by an experienced lawyer whose law firm bio suggests FCPA experience as well as a “distinguished legal writing” award begins:
“After years of vigorously enforcing the FCPA, a “sea change” in DOJ’s corporate enforcement priorities has appeared to roll in. DOJ leadership now professes that it intends for sanctions to become “the new FCPA.” DOJ has been doing more than just talking the talk to give sanctions the same attention once paid to FCPA violations. Between new hires and newly created divisions within the Department, sanctions cops may take over FCPA cops’ beat in 2024, a beat that has appeared relatively inactive in recent years.
What explains the continued recession in FCPA prosecutions despite DOJ’s predictions and efforts to ramp up FCPA enforcement? Perhaps DOJ has been focusing its resources on sanctions cases rather than FCPA investigations and prosecutions. Recent sanctions prosecutions indicate that DOJ is pursuing sanctions cases the Department once left to other enforcement and regulatory bodies. Maybe factors cited by DOJ officials last year continue to be an explanation for the low number of FCPA prosecutions – i.e., teams “working on new cases,” the after effects of the pandemic, and a “quality-over-quantity” focus.”
The article concludes:
“Although DOJ has made clear that it will devote resources and energy to targeting national security-related corporate criminal activity, the future of FCPA investigations and prosecutions may hang in the balance. FCPA-related activity has entered a recession over the past three years and, despite DOJ rhetoric, any increase does not seem to be on the horizon with a new phase of white-collar enforcement on the scene.”
For starters, it is just plain silly to compare yearly enforcement statistics to prior years when the current year is not yet over. Any experienced FCPA practitioner or commentator should know that Q4 – specifically the end of the calendar year – tends to be an active period for FCPA enforcement.
In any event, as of the date of publication of the Forbes article, here are the statistics.
DOJ Corporate Enforcement Actions
- 2023 (YTD) 6
- 2022 7
- 2021 2
- 2020 8
- 2019 8
- 2018 8
Does these numbers indicate a “continued recession in FCPA prosecutions,” a “slow down” in FCPA prosecutions, a “slump” in FCPA prosecutions?
Of course not. And to suggest otherwise is just plain inaccurate.
