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SEC FCPA Enforcement – 2021 Year In Review

Foreign Corrupt Practices Act enforcement, it’s not just about the DOJ.

Granted, as a civil enforcement agency the SEC’s sticks are less sharp than the DOJ’s, but the SEC also claims a significant piece of the FCPA enforcement pie (query whether it should – but that is a subject for another day – for instance as discussed in “The Story of the Foreign Corrupt Practices Act [1]” the SEC wanted no part in enforcing the FCPA’s anti-bribery provisions and in recent years an SEC Commissioner stated that anti-corruption policy is not within the SEC’s area of expertise nor further to the SEC’s mission – see here [2]).

This post goes in-depth into various facts and figures relevant to SEC FCPA enforcement in 2021. Compared to prior years, this year in review post and the statistics therein (like many from 2021) are less than enlightening given the small number of corporate enforcement actions in 2021.

[See here [3] for a similar post for 2020 here [4] for a similar post for 2019; here [5] for a similar post for 2018; here [6] for a similar post for 2017; here [7] for a similar post for 2016; here [8] for a similar post for 2015; here [9] for a similar post for 2014; here [10] for a similar post for 2013; here [11] for a similar post for 2012; here [12] for a similar post for 2011; and here [13] for a similar post for 2010].

Settlement Amounts and Specifics

In 2021, the SEC brought 4 corporate enforcement actions and collected approximately $171 million in those enforcement actions. (Note: this figure – as well as certain historical figures below – represent net FCPA settlement amounts after accounting for various credits or deductions in certain enforcement actions for related law enforcement actions).

Of note, in only 2 enforcement actions (Amec Foster Wheeler and WPP) did the SEC find that the company violated the FCPA’s anti-bribery provisions.

By way of comparison:

The range of SEC FCPA enforcement actions in 2021 was on the high end $99 million (Credit Suisse) and on the low end $10.1 million (Amec Foster Wheeler).

Of the 4 corporate enforcement actions brought by the SEC in 2021, 2 (50%) were SEC only from an FCPA standpoint. (Note: in connection with the SEC’s Credit Suisse FCPA enforcement action, the DOJ also brought an action that did not involve FCPA charges).

By way of comparison, of the 8 corporate enforcement actions brought by the SEC in 2020, 4 (50%) were SEC only; of the 13 corporate enforcement actions brought by the SEC in 2019, 6 (46%) were SEC only; of the 14 corporate enforcement actions brought by the SEC in 2018, 9 (64%) were SEC only; of the 7 corporate enforcement actions brought by the SEC in 2017, 4 (58%) were SEC only and of the 24 corporate enforcement actions brought by the SEC in 2016, 14 (58%) were SEC only.

Of the 4 corporate enforcement actions brought by the SEC in 2021, 4 (100%) were administrative actions. In other words, there was no judicial scrutiny of SEC corporate FCPA enforcement actions in 2021. By way of comparison:

[14]

In 2021,the SEC collected approximately $142 million in disgorgement and prejudgment interest in enforcement actions that did not charge or find anti-bribery violations. This is noteworthy because many question, and rightfully so, whether disgorgement is an appropriate remedy in cases that do not charge FCPA anti-bribery violations.  See here [15] for a prior post on so-called “no-charged bribery disgorgement” cases.

By way of comparison:

The $171 million million the SEC collected in 2021 corporate enforcement actions breaks down as follows:

In other words, approximately 57% of SEC corporate FCPA settlement amounts in 2021 consisted of disgorgement and prejudgment interest.

By way of comparison:

Corporate vs. Individual Actions

Of the 4 SEC FCPA enforcement actions in 2021, 0 (0%) have involved, at present, related SEC FCPA charges or findings against company employees. Stated differently, 100% of SEC corporate FCPA enforcement actions in 2021 lacked any related SEC charges or findings against company employees.

By way of comparison:

Voluntary Disclosures

Of the 4 SEC corporate FCPA enforcement actions from 2021, 0 (0%) appear to be the result of a voluntary disclosure.

By way of comparison:

This remainder of this post provides an overview of SEC FCPA enforcement in 2021.

Deutsche Bank (Jan. 8th)

See here [16] and here [17] 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 [18] and here [19] 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

WPP (Sept. 24th)

See here [20] and here [21] for prior posts.

Charges:  None (administrative order findings violations of the FCPA’s ant-bribery, books and records and internal controls provisions)

Settlement: $19.2 million ($10.1 million in disgorgement, $1.1 million in prejudgment interest, and an $8 million penalty)

Origin: Unclear from the resolution documents

Individuals Charged: No

Related DOJ Enforcement Action: No

Credit Suisse (Oct. 19th)

See here [22] 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 [23]). In October 2021 the DOJ brought a related enforcement action against Credit Suisse, but did not charge FCPA offenses (see here [24]).

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