Remember when Acting Principal Deputy Assistant Attorney General Trevor McFadden stated that it was the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”
This statement was made four years ago this week (see here for the prior post).
However, like much DOJ rhetoric surrounding the FCPA, it was just empty words. As highlighted below, since the DOJ’s statement of intention it has resolved approximately 30 corporate enforcement actions and the average length of time a company has been under FCPA scrutiny has been approximately 4.25 years.
In pertinent part, McFadden stated:
“We are also making a concerted effort to move corporate investigations expeditiously, and we expect cooperating companies to do so as well. This will maximize our ability to bring cases against responsible individuals, before applicable statutes of limitations have run or evidence is lost. Of course, this should also be good for cooperating companies. No executive wants to deal with a lingering government investigation or the associated costs and distraction from the company’s mission. Over the last few years, we have hired additional trial attorneys in the Criminal Division’s Fraud Section’s FCPA Unit to help investigate cases more quickly, and the Fraud Section leadership and I are focused on wrapping up old investigations. We expect cooperating companies to work with us to prioritize internal investigations and to respond to Fraud Section requests promptly to ensure there are no unnecessary delays. My intent is for our FCPA investigations to be measured in months, not years.”
The prior post noted that the DOJ statement should be welcome news to the business community, but that “actions speak louder than words and a wait and see approach [was] most prudent as the DOJ has been saying the same general thing for a couple of years now.”
Four years since the DOJ stated an intent for its “FCPA investigations to be measured in months, not years,” what has actually happened?
There have been approximately 30 DOJ corporate enforcement actions. In certain of the enforcement actions, it was not possible to calculate the length of scrutiny based on information in the resolution documents and/or public domain. However, in most enforcement actions it was possible to calculate the length of time a company was under FCPA scrutiny as set forth below.
- Keppel Offshore & Marine – 1.5 years
- Vitol – 2 years
- Cognizant Technology Solutions – 2.5 years
- J&F Investimentos – 3 years
- Technip 3.25 years
- Herbalife – 3.5 years
- Airbus – 3.75 years
- Novartis – 4 years
- Petrobras – 4 years
- Samsung Heavy Industries – 4 years
- Societe Generale – 4.25 years
- Credit Suisse – 4.5 years
- Goldman Sachs – 5 years
- Telia – 5 years
- MTS – 5 years
- Panasonic – 5.5 years
- Beam – 6 years
- Ericsson 6 years
- Fresenius – 6.5 years
- Microsoft – 6.5 years
- Walmart – 8 years