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No Come Aparts Now – Nor Should There Be – Gaps In FCPA Enforcement Are Common


Around this time four years ago, some people were seemingly having a come apart because there was a lull in Foreign Corrupt Practices Act enforcement and this lull was “evidence” of [insert whatever gripe you had about the Trump administration and assume causation].

So here we are over three months into the Biden administration and there has not yet been a corporate FCPA enforcement action. So where are the come aparts?

As highlighted below, there should be no come aparts now nor should there have been four years ago because gaps in FCPA enforcement are 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 DOJ 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.

There will be FCPA enforcement during the Biden – no doubt generally consistent with recent historical averages – just like there was FCPA enforcement during the Trump administration – generally above historical averages both in terms of corporate and individual FCPA enforcement.

The big difference though is with the current gap there does not seem to be any come aparts like there were four years ago. But then again, those come aparts were not grounded in disciplined analysis, but political views masquerading as FCPA commentary.

Indeed, over the last four years I lost respect for certain FCPA commentators given that their commentary was overtly political and only made sense when viewing the commentators publicly available political contributions. It is certainly fine – if backed with data or other forms of objective support – to have differing opinions about FCPA enforcement. However, unsupported narratives, narratives conflicting with actual facts, or out of context commentary devoid of historical context became the norm over the past four years.

Let’s hope that will change.

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