This post highlights Foreign Corrupt Practices Act enforcement and related developments at the mid-point of 2021. As highlighted below, in two core corporate enforcement actions, the DOJ/SEC have secured net $140.3 million in FCPA settlement amounts. None of the corporate enforcement actions have resulted in any related charges against company employees.
For a similar post at the mid-point of 2020 see here, for 2019 see here, for 2018 see here, for 2017 see here, and for 2016 see here.
This post breaks down FCPA enforcement into the following categories: DOJ (corporate); DOJ (individual); SEC (corporate); and SEC (individual). Thereafter, this post highlights other FCPA developments or items of interest thus far in 2021.
DOJ Enforcement (Corporate)
Thus far in 2021, the DOJ has brought two core corporate enforcement actions with net settlement amounts totaling $87.2 million.
Deutsche Bank (Jan. 8th)
See here and here for prior posts.
Charges: Conspiracy to violate the FCPA’s books and records and internal controls provisions
Resolution Vehicle: Deferred Prosecution Agreement
Guidelines Range: $70.7 million to $141.4 million
Settlement: $79.6 million
Origin: Not specified in the resolution documents
Monitor: No
Individuals Charged: No
Amec Foster Wheeler (June 25)
See here and here for prior posts.
Charges: Conspiracy to violate the FCPA’s anti-bribery provisions
Resolution Vehicle: Deferred Prosecution Agreement
Guidelines Range: $24.5 – $49 million
Settlement: Net $7.6 million (after credits for related foreign law enforcement actions)
Origin: Requests for information from the DOJ/SEC
Monitor: No
Individuals Charged: No
DOJ Enforcement (Individual)
Thus far in 2021, the DOJ has announced one core individual action involving two individuals. As highlighted here, in relation to Griffiths Energy International’s bribery scheme involving Chad the DOJ charged Nouracham Niam and Naeem Riaz Tyab with FCPA (and related) offenses.
As highlighted here, thus far in 2021 the DOJ has also charged several individuals with non-FCPA offenses, even though the DOJ alleged that the individuals violated the FCPA.
SEC Enforcement (Corporate)
Thus far in 2021, the SEC has brought two core corporate enforcement actions with net settlement amounts totaling $53.1 million.
Deutsche Bank (Jan. 8th)
See here and here for prior posts.
Charges: None (administrative order findings violations of the FCPA’s books and records and internal controls provisions)
Settlement: $43 million
Origin: Not specified in the resolution documents
Individuals Charged: No
Related DOJ Enforcement Action: Yes
Amec Foster Wheeler (June 25)
See here and here for prior posts.
Charges: None (administrative order findings violations of the FCPA’s ant-bribery, books and records and internal controls provisions)
Settlement: Net $10.1 million (after credits for related foreign law enforcement actions)
Origin: Requests for information from the DOJ/SEC
Individuals Charged: No
Related DOJ Enforcement Action: Yes
SEC Enforcement (Individual)
Thus far in 2021, the SEC has not announced any new FCPA enforcement actions.
As highlighted here approximately 4.5 years after its enforcement action against former Och-Zifff executive Joel Frank, the SEC ordered Frank to pay a $35,000 civil penalty. As highlighted here Asante Berko (a former Executive Director of Goldman Sachs International) resolved a 2020 SEC FCPA enforcement action concerning conduct in Ghana by agreeing to pay $329,163.92 (disgorgement of $275,000 along with prejudgment interest of $54,163.92).
Other Developments or Items of Interest
As highlighted here, an SEC Commissioner called the SEC’s approach to corporate penalties “fundamentally flawed.”
As highlighted in this post, a Hong Kong court found a former JP Morgan executive not guilty of bribery in connection with the company’s “sons and daughters” internship and hiring program – the same program at issue in a $203 million FCPA enforcement action against the company in 2016.
As discussed in this post, bills previously introduced in Congress to divert FCPA settlements from simply going into the U.S. Treasury were re-introduced in the new Congress.
As highlighted here, the Supreme Court once again unanimously bench slapped a wayward enforcement agency and as highlighted here, the Supreme Court once again rejected the DOJ’s overly expansive interpretation of a criminal statute.
As highlighted here, in connection with the 2018 FCPA enforcement action against Panasonic, the SEC announced that a whistleblower was awarded $28 million.
The DOJ announced a series of steps to increase its focus on investigations, prosecutions, and asset recoveries relating to corruption in the “Northern Triangle” countries of Guatemala, Honduras and El Salvador. (See here).
President Biden released a memo titled “Memorandum on Establishing the Fight Against Corruption as a Core United States National Security Interest.” In pertinent part, the memo states that “countering corruption [is] a core United States national security interest” and Biden pledged that his “Administration will lead efforts to promote good governance; bring transparency to the United States and global financial systems; prevent and combat corruption at home and abroad; and make it increasingly difficult for corrupt actors to shield their activities.” Some suggested that “President Biden introduced a big idea into the global debate when he declared that combating corruption is a ‘core U.S. national security interest.” However, as highlighted here, U.S. government officials have long maintained that Foreign Corrupt Practices Act enforcement (one way in which the U.S. government attempts to address corruption) is necessary to protect national security. Indeed, national security is a reason not to enforce the FCPA as specifically stated in the statute.
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