Report Predicts Ongoing Anticorruption Enforcement
In a new report highlighting trends in the enforcement of the US Foreign Corrupt Practices Act (FCPA), Bass, Berry & Sims predicts ongoing robust prosecutions, continued cooperation with foreign counterparts in anticorruption investigations and an extension to a program encouraging self-disclosures.
The DOJ’s FCPA Pilot Program is scheduled to end on April 6, one year after it was introduced, but it is likely to be renewed, according to the firm’s “FCPA: 2016 Year in Review & 2017 Enforcement Predictions.”
“In light of the number of settlements deriving from voluntary self-disclosures last year, and the DOJ’s apparent interest in providing mitigation credit to cooperating companies, we anticipate the Pilot Program to be extended – perhaps with little change – throughout this year and potentially coming years,” said John Kelly, co-chair of the firm’s FCPA practice.
The report reveals that current cases in the pipeline alone will create extensive enforcement and settlements throughout 2017.
“Enforcement under the FCPA has never been more aggressive or coordinated both in terms of settlement amounts and number of enforcement actions,” said Wally Dietz, co-chair of the FCPA practice group. “It is no longer uncommon for companies to pay in excess of $100 million in civil and criminal penalties to resolve FCPA actions. With that being said, this review aims at providing corporate leaders and companies with the knowledge they need to comply with the FCPA and avoid litigation in 2017.”
The topics covered in the review, include:
FCPA Enforcement Statistics & Significant 2016 Corporate Enforcement Actions – This section focuses on analyzing corporate settlement amounts from 2012 to 2016. It also outlines the four largest resolutions in 2016 involving VimpleCom, Och-Ziff, Odebrecht/Braskem, Teva Pharmaceutical; and it outlines individual resolutions.
2016 Developments & Trends – After a temporary lull in 2015, enforcement actions in 2016 resulted in record-breaking resolutions and penalties. Although 2016 was certainly a banner year in terms of enforcement actions, equally noteworthy was the uptick in the number of declinations. In 2016, the DOJ and SEC continued to hold individuals accountable for FCPA violations. These decisions to bring enforcement actions against individuals, can, in part, be attributed to the Yates Memorandum. This year was marked by increased multi-jurisdictional cooperation and enforcement in anti-corruption. The enforcement actions arising out of multinationals’ pharmaceutical operations in China continue to demonstrate an expansive interpretation of what constitutes a “foreign government official.”
A Look Forward: 2017 FCPA Enforcement Predictions – Looking into a crystal ball for the upcoming year, four key questions arise: Will the larger international community continue to focus on anti-corruption enforcement actions? Will the FCPA Pilot Program be extended? Will we continue to see an aggressive stance from the DOJ and SEC? Will Congress amend the FCPA?