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What You Need To Know From Q4


FCPA Professor will once again be the place to visit in January for a plethora of 2021 year in review statistics. But first, this post closes out the fourth quarter of 2021. (See here for Q1, here for Q2 and here for Q3).

DOJ Enforcement (Corporate)

The DOJ did not bring any corporate FCPA enforcement action in the fourth quarter.

DOJ Enforcement (Individual)

The DOJ announced an enforcement action against one individual in the fourth quarter.

As highlighted here, Frederick Cushmore Jr. (a former employee of Corsa Coal Corp. in various international sales positions including Vice-President, Head of International Sales) was criminally charged and pled guilty to a conspiracy charge to violate the FCPA’s anti-bribery provisions in connection with a bribery scheme in Egypt.

SEC Enforcement (Corporate)

The SEC brought one corporate FCPA enforcement action in the fourth quarter. SEC recovery in this action was approximately $99 million.

Credit Suisse (Oct. 19th)

See here for the prior post.

Charges:  None (administrative order finding violations of the FCPA’s books and records and internal controls provisions – as well as other securities law violations)

Settlement: $99 million ($34 million in disgorgement and prejudgment interest and a civil penalty of $65 million).

Origin: Unclear from the resolution documents (but not a voluntary disclosure)

Individuals Charged: No

Related DOJ Enforcement Action: Yes in 2019 various individuals were charged were FCPA offenses (see here). In October 2021 the DOJ brought a related enforcement action against Credit Suisse, but did not charge FCPA offenses (see here).

SEC Enforcement (Individual)

The SEC did not bring any individual FCPA enforcement actions in the fourth quarter.

Other Developments or Items of Interest

As highlighted here, a Court dismissed criminal FCPA (and related charges) against Daisy Rafoi-Bleuler in connection with an alleged Venezuelan bribery scheme for lack of jurisdiction and also hinted that the term “agent” in the FCPA is unconstitutionally vague. The DOJ has filed a notice of appeal (see here).

As discussed here, the White House released a fluffy memorandum titled “United States Strategy on Countering Corruption” that represents little more than bureaucratic, political gobbledygook.

As highlighted here, the OECD released a laundry list of updated recommendations for “further combating bribery of foreign public officials in international business transactions.” As further proof that the OECD prioritizes quantity of enforcement over quality of enforcement, the OECD is now recommending that member countries to the OECD Anti-Bribery Convention “consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions.” By doing so, the OECD is green lighting the “facade” of enforcement (see here and here for prior articles on the subject).

As highlighted here, the DOJ is alleging that Ericsson is in breach of its 2019 deferred prosecution agreement used to resolve a net $1.06 billion FCPA enforcement action concerning conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia.

As discussed here, Deputy Attorney General Lisa Monaco gave a speech in which she discussed DOJ policy regarding individual accountability, prior corporate misconduct, corporate monitors, and NPAs and DPAs. While the speech generated a significant amount of attention, substantively the speech was largely a yawner and the policy changes articulated are marginal at best and elevate form over substance.

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