Recently the Department of Justice Fraud Section released its 2022 Year in Review.
Set forth below are the FCPA relevant portions.
The Fraud Section has three “litigating units” including the FCPA Unit described as follows:
“The Foreign Corrupt Practices Act (FCPA) Unit has primary jurisdiction to investigate and prosecute violations of the FCPA and works in parallel with the Securities and Exchange Commission (SEC), which has civil enforcement authority for violations of the FCPA by publicly traded companies. The FCPA Unit has brought criminal enforcement actions against individuals and companies and has focused its enforcement efforts on both the supply side and demand side of corrupt transactions. The FCPA Unit has also brought cases in parallel to the Commodity Futures Trading Commission (CFTC) and other agencies. The FCPA Unit also plays a leading role in developing policy as it relates to the FCPA, and training and assisting foreign governments in the global fight against corruption.”
As stated by the DOJ:
“The FCPA Unit’s 35 prosecutors investigate and prosecute foreign bribery cases under the FCPA and related statutes. As the global leaders in the criminal enforcement of foreign bribery, our prosecutors routinely cooperate with international law enforcement partners to investigate and prosecute complex foreign bribery offenses that are committed by sophisticated actors across multiple jurisdictions throughout the world. In 2022, the FCPA Unit prosecutors once more demonstrated the effectiveness of international cooperation by coordinating several significant corporate resolutions with domestic and foreign authorities. Case in point, each of the five corporate FCPA matters that resulted in a criminal resolution was coordinated with parallel resolutions by domestic and foreign authorities. Of particular note is the criminal resolution of Glencore International A.G., the operational parent of a Swiss-based international commodities trading and mining company, which pleaded guilty in connection with a decade-long pervasive bribery scheme in seven countries. The Department’s criminal resolution with three entities of ABB, the Swiss-based global technology company, saw the FCPA Unit’s first coordinated enforcement action with South Africa. In addition, the two declinations in 2022 pursuant to the Corporate Enforcement Policy demonstrated the Unit’s analysis of voluntary self-disclosures, including in the context of corporate acquisitions.”
The Year in Review contains the following infographic.
Keep the following two points in mind regarding the infographic.
First, these are “FCPA Unit” statistics and not FCPA enforcement statistics. Many of the individual statistics concern enforcement actions against alleged foreign officials for money laundering or other non-FCPA offenses.
Second, the corporate resolutions statistics do not include the two “declinations with disgorgement” from 2022: JLT ($29 million) and Safran ($17.2 million). Why the DOJ does not consider a company paying millions of dollars pursuant to a letter agreement a “corporate resolution” is interesting (particularly since these “declinations with disgorgement” are mentioned elsewhere in the DOJ’s report).
The DOJ report states:
“For years, the FCPA Unit has been at the forefront of thought leadership in shaping the Criminal Division’s corporate enforcement and advancing international efforts to combat bribery on a global scale. In doing so again in 2022, FCPA Unit prosecutors took active roles in the Deputy Attorney General’s Corporate Crime Advisory Group, the recent revisions to the Criminal Division’s Corporate Enforcement Policy announced by Assistant Attorney General Kenneth A. Polite, Jr., in January 2023, as well as the continued engagement of foreign authorities and law enforcement partners in multilateral and regional bodies that are central to the Biden Administration’s commitment to fighting global corruption.”
Under the heading “Participation in Global Anti-Corruption Bodies,” the report states:
“The United States is a party to several international anti-corruption conventions, including the OECD Anti-Bribery Convention, the United Nations Convention Against Corruption, and the Inter-American Convention Against Corruption. Under these conventions, member countries undertake commitments to adopt a range of preventive and criminal law enforcement measures to combat corruption. The conventions incorporate review processes that permit other parties to monitor the United States’ anti-corruption laws and enforcement to ensure that such enforcement and legal frameworks are consistent with the United States’ treaty obligations.
The Fraud Section, and the CECP Unit and FCPA Unit in particular, play an integral role in working with the State Department and other U.S. agencies to ensure that the United States is meeting its treaty obligations. Aside from participating in meetings related to foreign bribery and corruption hosted by the OECD, the United Nations, and other intergovernmental bodies and liaising with these bodies throughout the year on anticorruption matters, the Fraud Section has actively participated in the reviews of other countries pursuant to the anti-bribery conventions. The Fraud Section also has taken a leading role in the OECD Working Group on Bribery’s Law Enforcement Officials (LEO) Group meetings, where prosecutors discuss best practices with law enforcement authorities from around the world. The Chief of the CECP Unit is currently the Chair of the LEO Group.
The CECP Unit also collaborates with United Kingdom enforcement authorities. The Fraud Section has detailed a prosecutor to the United Kingdom’s Serious Fraud Office (SFO) and Financial Conduct Authority (FCA) to further develop and expand the close collaboration and cooperation between those agencies and the Department; the Fraud Section began this program with a prior detailee to the SFO and FCA from 2017 to 2020. Deployed from and overseen by the CECP Unit, this unique position reflects the Department’s commitment to international cooperation in the fight against sophisticated cross-border economic crime. The Fraud Section’s detailee participates in FCA and SFO investigations, advises DOJ, FCA, SFO and other UK regulatory and law enforcement personnel on effective interagency coordination, and otherwise serves as a liaison between the Fraud Section and some of its most critical overseas law enforcement and regulatory partners.”
