As touched upon in this prior post, during the Trump administration certain FCPA commentators appeared to become unhinged and were saying some ridiculous things (see here – “the Foreign Corrupt Practices Act is likely to be substantially weakened, perhaps even repealed” and “the era of vigorous FCPA enforcement … is over.”).
Once it become clear that FCPA enforcement remained robust during the Trump administration – and indeed was above recent historical averages in terms of both corporate and individual enforcement as well as set records in terms of overall yearly FCPA settlement amounts, – some commentators shifted gears and suggested that none of this really mattered because certain FCPA enforcement actions were initiated, and in the so-called pipeline, prior to the Trump administration.
Given that corporate FCPA scrutiny tends to last approximately four years on average (see here), such statements were partially and technically true. However, I don’t recall commentators ever discounting FCPA enforcement actions during the first Obama administration even though many of them initiated during the Bush administration nor do I recall commentators ever discounting FCPA enforcement actions during the first Bush administration even though many of them initiated during the Clinton administration.
As highlighted in this prior post, earlier this week the DOJ announced FCPA and related charges in connection with a long-standing matter involving bribery by a Canadian energy company in Chad. It was the first FCPA enforcement action of the Biden administration.
But adopting the logic of certain commentators during the Trump administration – was it really a Biden administration enforcement action?
After all, even though the announcement of the enforcement action was made this week, the announcement concerned the unsealing of a criminal indictment filed in federal court in February 2019 – during the Trump administration.
So was it a Trump administration enforcement action?
Or perhaps it was an Obama administration enforcement action because – as highlighted in the prior post – the DOJ began filing civil forfeiture actions in 2014 concerning the assets at issue.
The short answer is who really cares!
In keeping FCPA enforcement yearly statistics on these pages the DOJ FCPA enforcement action from early this week will be counted as a 2021 enforcement action because that is when the enforcement action was publicly announced.
It all seems like rather basic stuff, but then again some FCPA commentators seemed to lose their sense of rationality – and their credibility – with some of their ridiculous commentary and assertions during the Trump administration.