This post highlights Foreign Corrupt Practices Act enforcement and related developments at the mid-point of 2022.
As highlighted below, in five core corporate enforcement actions, the DOJ/SEC have secured net $615 million in FCPA settlement amounts.
For a similar post at the mid-point of 2021 see here, for 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 2022.
DOJ Enforcement (Corporate)
Thus far in 2022, the DOJ has brought three core corporate enforcement actions with net settlement amounts totaling $507 million.
Glencore (May 24th)
See here and here for prior posts.
Charges: Conspiracy to violate the anti-bribery provisions.
Resolution Vehicle: Criminal information charges resolved through a plea agreement.
Guidelines Range: $504 million to $1.008 billion
Settlement: Net $443 million (after credits for related foreign law enforcement settlements).
Origin: DOJ subpoena.
Monitor: Yes
Individuals Charged: Yes
Stericycle (April 20th)
See here and here for prior posts.
Charges: Conspiracy to violate the anti-bribery provisions and the books and records provision.
Resolution Vehicle: Criminal information resolved through a deferred prosecution agreement.
Guidelines Range: $70 – $140 million
Settlement: Net $35 million (after credit for related foreign law enforcement settlement).
Origin: SEC subpoena / DOJ inquiry
Monitor: Yes
Individuals Charged: No
JLT (March 18th)
See here for the prior post.
Charges: None. Declination with Disgorgement letter references violations of the FCPA’s anti-bribery provisions.
Resolution Vehicle: Declination with Disgorgement.
Guidelines Range: Not specified.
Settlement: Approximately $29 million. (As stated by the DOJ: “The Department agrees to credit the Disgorgement Amount against the amount JLT pays to the U.K. Serious Fraud Office (“SFO”), up to 100 percent of the Disgorgement Amount, so long as JLT pays the Disgorgement Amount to the SFO pursuant to the Company’s separate resolution with the SFO that addresses the same underlying conduct.”).
Origin: Voluntary disclosure.
Monitor: No
Individuals Charged: No
DOJ Enforcement (Individual)
Thus far in 2022, the DOJ has announced criminal charges against Charles Hunter Hobson (a former executive of Corsa Coal) in connection with an alleged Egypt bribery scheme. (See here). The allegations concern the same core conduct as the 2021 enforcement action against another former Corsa Coal executive.
SEC Enforcement (Corporate)
Thus far in 2022, the SEC has brought three core corporate enforcement actions with net settlement amounts totaling approximately $108 million.
Tenaris (June 2nd)
See here and here for prior posts.
Charges: None (administrative order findings violations of the anti-bribery, books and records, and internal controls provisions)
Settlement: $78.1 million
Origin: Voluntary disclosure
Individuals Charged: No
Related DOJ Enforcement Action: No
Stericycle (April 20th)
See here and here for prior posts.
Charges: None (administrative order findings violations of the anti-bribery, books and records, and internal controls provisions)
Settlement: $24 million (after offsets for a related foreign law enforcement settlement)
Origin: SEC subpoena / DOJ inquiry
Individuals Charged: No
Related DOJ Enforcement Action: Yes
KT Corp. (Feb. 17th)
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: $6.3 million
Origin: Related foreign law enforcement action
Individuals Charged: No
Related DOJ Enforcement Action: No.
SEC Enforcement (Individual)
Thus far in 2022, the SEC has not announced any individual FCPA enforcement actions. (The last SEC individual FCPA enforcement action occurred in October 2020 and the nearly two year gap in individual SEC FCPA enforcement actions is the longest in nearly a decade)
Other Developments or Items of Interest
As highlighted here, in what can only be described as a debacle, the DOJ dropped its FCPA enforcement actions against Joseph Baptiste and Roger Boncy.
As highlighted here, four former Ericsson executives were acquitted in Sweden regarding the same core conduct involved, in part, in the 2019 FCPA enforcement action against Ericsson. One of the defendants acquitted was Afework “Affe” Bereket who has been criminally charged by the DOJ based on the same core conduct.
This post discusses the SEC’s new apparent certification language in FCPA enforcement actions and this post discusses the DOJ’s new apparent certification language.
As highlighted here, the 5th Circuit held that an SEC FCPA enforcement approach is unconstitutional.
As discussed here, Roger Ng (a former managing director at Goldman Sachs) was convicted at trial of FCPA and related offenses for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company. This post highlights how the judge in the case broadly interpreted the FCPA’s internal controls provisions and concluded that “circumvention” does not depend on the falsification of a book or record.
As highlighted in this post, the DOJ released an opinion procedure release that read like a Hollywood script.
On Capitol Hill, a China-focused FCPA reform bill was introduced (see here). However, this post argues that the FCPA is not the place for country specific foreign policy.
In connection with separate civil lawsuits filed by the Mexican Social Security Institute in the aftermath of FCPA enforcement actions, the Seventh Circuit held that the United Nations Convention Against Corruption “is not binding federal law” (see here) and the Sixth Circuit concluded that “just because the U.N. Convention requires that American courts be available to foreign plaintiffs in corruption cases does not mean “that foreign states win in our courts no matter the merits of their arguments.” (see here).
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