John Davis Comments on 2013 FCPA Enforcement in Corporate Counsel

"FCPA Enforcement Off to a Slow Start in 2013"
Corporate Counsel

In this article, John Davis discusses the enforcement trends noted within Miller & Chevalier's FCPA Spring Review 2013. Depending on how a case is classified, there was either zero or one enforcement action taken during the first quarter of 2013. According to Davis, this may only be the result of timing. "Companies should not look at the dearth of cases in the last quarter and think, 'Now we don’t have to worry about this,'" he said, adding, "Investigations take time, and [agencies] have been focusing on any number of them during that time frame."

Another trend is the increase in companies who are disclosing FCPA investigations, in large part because the SEC tends to view them as material matters to investors. "More and more companies are taking the safe approach and effectively disclosing," Davis said.

Individual prosecutions are continuing in 2013, with courts sentencing eight defendants in four cases. Prosecutors are, however, seeing "mixed results" in the courtroom, Davis said, which means that, "for many of these individuals, it's worth fighting if you have the resources." Indeed, in February, two contrasting rulings in the Southern District of New York showed that "the facts matter" in every case, said Davis. For prosecutors, "They’re going to have to be better at establishing and explaining the facts they need to establish jurisdiction," he said.

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