Editor’s Note: This post originally appeared on WilmerHale.com.
This past year marked the 40th anniversary of the U.S. Foreign Corrupt Practices Act (“FCPA”). Since its enactment in 1977, the U.S. Department of Justice (the “DOJ”) has brought approximately 300 FCPA enforcement actions, while the U.S. Securities and Exchange Commission (the “SEC”) has brought approximately 200 cases.1 This anniversary year, the first year of the Trump administration, demonstrated that the FCPA continues to be a powerful tool in combating corruption abroad and encouraging compliance at global companies.
Below are six key takeaways regarding FCPA enforcement in 2017:
• FCPA enforcement is alive in the Trump era. Statistics for enforcement actions may be slightly lower in 2017 than in years past, but significant activity continues and 2017 saw several blockbuster cases. To learn more about 2017 FCPA enforcement trends and efforts, please refer to Section I “2017 Enforcement Trends and Priorities” and Section III “Key Investigation-Related Developments.”
• Prosecution of individuals was high in 2017, and individuals continue to be charged long after corporations settle. To read about individual prosecutions in 2017, please refer to Section III.C “Notable Aspects of Individual Resolutions.”
• Non-U.S. companies were predominantly the targets, intentionally or unintentionally, of FCPA enforcement in 2017. To read more about this development, please refer to Section I “2017 Enforcement Trends and Priorities” and Section III.B.2 “Continued Rise in Global Enforcement and Cooperation.”
• International cooperation continues to be a hallmark of corruption enforcement worldwide, and non-U.S. enforcement continues to rise. To learn more about this topic, please consult Section III.B.2 “Continued Rise in Global Enforcement and Cooperation” and Section VII “Key International Legal Developments.”
• The new 2017 FCPA Corporate Enforcement Policy is not a game changer. However, it places more value on voluntary disclosure. Whether that value outweighs potential costs will continue to require case-by-case evaluation. To learn more about the FCPA Corporate Enforcement Policy, please refer to Section II “Recent Policy Changes.”
• Recent enforcement cases indicate that bribery schemes continue to evolve and become more sophisticated. Companies can learn from these developments to refine the elements and contours of their internal controls and corporate compliance programs. To learn more about this topic, please refer to Section III.B “Notable Features of Corporate Resolutions.”
Overall, FCPA enforcement continued at a strong pace in 2017 and has proved initial speculation about the FCPA’s demise under the Trump administration to be exaggerated. While several 2017 enforcement actions were initiated under the Obama administration, a large number of FCPA cases remain in the pipeline, investigations tend to last several years and straddle administrations, and the current leaders of both the DOJ and SEC have affirmed their commitment to prosecuting FCPA violations (with recent large settlements such as Telia and SBM showing that the government is taking action to back up its rhetoric).
Among others, Attorney General Jeff Sessions has emphasized the need to enforce the FCPA as a means of protecting “honest businesses” from corruption which “harms free competition, distorts prices and often leads to substandard products and services coming into our country.”
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