FCPA Enforcement Picks Up in 2nd Half of 2017



In this article, James Tillen and Michael Skopets* discuss enforcement activity and trends under the Foreign Corrupt Practices Act (FCPA), the new FCPA corporate enforcement policy issued by the Department of Justice (DOJ), and notable staffing changes at the DOJ and the Securities and Exchange Commission (SEC). Overall, according to the authors, "the agencies' activity during the first year of the Trump administration indicates an absence of any significant departure from previous FCPA enforcement trends. Statements by senior DOJ and SEC officials relating to the statute continue to support robust anti-corruption enforcement." Tillen and Skopets included detailed data reflecting recent corporate and individual enforcement actions, declinations, and known investigations. In addition to six corporate enforcement actions resolved since September 2017, "recent enforcement actions against individuals come against a backdrop of statements by DOJ and SEC officials regarding the agencies' efforts to hold individuals accountable in the context of corporate FCPA enforcement, as well as the DOJ's new FCPA corporate enforcement policy and its ongoing review of the Yates memorandum, announced in October 2017," the authors wrote. With respect to declinations, "[t]he number of declinations in 2017 to date already exceeds the year-end totals for every year since at least 2008 and is likely to rise further by the end of the year." Tillen and Skopets further noted that "[b]y introducing a presumption of a declination for companies that self-report potential FCPA violations and meet certain other criteria, the DOJ's new enforcement policy is likely to affect the department's approach to declinations. Whether the policy will result in a measurable increase in declinations remains to be seen, though the DOJ's decision to publicize declinations issued under the new policy will provide greater transparency as to new declinations."

*Former Miller & Chevalier attorney