Recently the Department of Justice Fraud Section released its 2023 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 plays a leading role in developing policy as it relates to the FCPA and related statutes, and training and assisting foreign governments in the global fight against corruption.”
As stated by the DOJ:
“The FCPA Unit’s 32 prosecutors investigate and prosecute foreign bribery cases under the FCPA and related statutes. In 2023 our prosecutors continued to cooperate with domestic and international law enforcement partners to investigate and prosecute complex foreign bribery offenses. Collectively, the corporate resolutions announced in 2023 reflect the FCPA Unit’s nuanced application of various practices and policies implemented by the Criminal Division in 2023, including the revised Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) and the Compensation Incentives and Clawbacks Pilot Program. As a result, these resolutions (as well as the January 2024 criminal resolution with SAP) have begun to set expectations and benchmarks for companies that are the subject of enforcement actions—including the available cooperation and remediation credit; the imposition of forfeiture/disgorgement in non issuer cases; the consideration of a company’s prior misconduct; and the interpretation and application of the Compensation Incentives and Clawbacks Pilot Program. Expect further corporate dispositions in 2024 to provide additional examples of the FCPA Unit’s implementation of the various corporate enforcement policy developments in the Criminal Division
The Year in Review contains the following infographic.
Keep the following points in mind regarding the infographic.
First, these are “FCPA Unit” statistics and not necessarily FCPA enforcement statistics. Many of the individual statistics concern enforcement actions against alleged foreign officials for money laundering or other non-FCPA offenses.
Second, there were 7 corporate FCPA resolutions in 2023: Corsa Coal, Corficolombiana, Albemarle, Lifecore, Tysers, H.W. Wood, and Freepoint Commodities.
Third, in the 7 corporate FCPA enforcement actions from 2023, the DOJ collected approximately $252 million after accounting for various credits or deductions in certain related law enforcement actions (either domestic or foreign) or inability to pay in certain instances.
The DOJ report states:
During the past year, the FCPA Unit resolved six criminal corporate cases, including the FCPA Unit’s first ever coordinated resolution with Colombia, and issued two CEP declinations. In resolving these matters, the FCPA Unit applied the spectrum of corporate resolution mechanisms: a guilty plea resulting from a breach of a prior deferred prosecution agreement (DPA) in the Ericsson matter, four DPAs (Corficolombiana, H.W. Wood, Tysers, and Freepoint), one non-prosecution agreement (NPA) (Albemarle), and two declinations with disgorgement pursuant to the CEP (Corsa Coal and Lifecore Biomedical).
In addition to resolving these corporate cases, the FCPA Unit continued to hold corrupt individual actors to account. The defendants charged in 2023 include bribe payers, intermediaries, and foreign officials. Prosecutors in the Unit also continued to use other statutes to charge conduct arising out of bribery investigations by alleging money laundering or wire fraud. And the Unit’s efforts to bring impactful cases against culpable individuals was reflected in three of the most significant prison terms imposed against corrupt actors, including a 10-year sentence for a former managing director of Goldman Sachs and 15-year sentences against the former national treasurer of Venezuela and her husband following their respective trial convictions in 2022. As in the previous year, FCPA Unit trial attorneys also prosecuted cases outside of the foreign bribery context with the Fraud Section’s Health Care Fraud Unit and various U.S. Attorney’s Offices, including the “January 6 Capitol Breach” prosecutions.
In 2023, in furtherance of the FCPA Unit’s partnerships with foreign law enforcement authorities, the FCPA Unit released its first-ever edition of the FCPA Resource Guide in another language: Spanish―emphasizing the reach and importance of anti-corruption efforts in Spanish-speaking countries and of course, the value of our Spanish-speaking partners.
Lastly, the FCPA Unit will continue to pursue corporate and individual corrupt actors, using the various tools at its disposal. Through an ongoing investment in personnel and resources, the Unit has expanded its ability to obtain and analyze data―both public and non-public―to identify potential corrupt actors, which has assisted ongoing investigations and led to successful prosecutions. A more sustained engagement with foreign authorities is another important part in this effort. To that effect, the announcement in December 2023 of the FCPA Unit’s International Corporate Anti-Bribery Initiative (ICAB) will deepen the FCPA Unit’s efforts to engage with relevant foreign authorities. In December 2023, the President signed into law the “Foreign Extortion Prevention Act” (FEPA). Legislation that criminalizes the demand side of foreign bribery provides another tool in the FCPA Unit’s arsenal to investigate and prosecute corrupt actors.”
