There has not been a corporate FCPA enforcement action since January 19th. In other words, there has not been a corporate FCPA enforcement action brought by the Trump administration.
In the minds of some this is likely “evidence” of [insert whatever grip you have about the Trump administration and assume causation].
However, facts are important and this post highlights the fact that gaps in FCPA enforcement are common and that numerous gaps in FCPA enforcement occurred during the Obama administration.
As highlighted in this article, 2016 was a record-breaking year for FCPA enforcement both in terms of the number of core corporate enforcement actions and the settlement amounts in those enforcement actions. However, not every year can be record-breaking (just ask the Golden State Warriors who finished the regular season 67-15, but well off the record-breaking record last year of 73-9).
I’ve been telling anyone who will listen since January that 2017 FCPA enforcement was very unlikely to top 2016 FCPA enforcement for the simple reason that records can’t be set every year. With the current four month gap in corporate FCPA enforcement, this conclusion seems almost certain.
However, the current four month gap in corporate FCPA enforcement is not unusual, in fact it is very common.
Let’s not forget that in 2015 there were only two corporate DOJ FCPA enforcement actions. One occurred in mid-June and the other occurred mid-July. In other words, in 2015 there were two approximate six month gaps in corporate FCPA enforcement.
In 2014, there was a seven month gap in DOJ corporate FCPA enforcement and two three month gaps in SEC corporate FCPA enforcement.
In 2013, there were five month gaps in both DOJ and SEC corporate FCPA enforcement.
In 2012, there were two three month gaps in SEC corporate FCPA enforcement and a three month gap in DOJ corporate FCPA enforcement.
In 2011, there were three month gaps in both DOJ and SEC corporate FCPA enforcement.
In 2010, there was a three month gap in DOJ corporate FCPA enforcement.
Keep in in mind that all of the above gaps occurred during the “mature” Obama administration.
The Trump administration has, all things considered, just begun. Its SEC chair was confirmed on May 2nd and its Attorney General was confirmed on February 8th.
In short, let’s all take a deep breath when it comes to the current gap in corporate FCPA enforcement.
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