Marc Alain Bohn Quoted on Increase in FCPA Investigations Landscape in Compliance Week

"Distilling Lessons From the Uptick in FCPA Declinations"

Compliance Week


Marc Alain Bohn was quoted regarding the increase in Foreign Corrupt Practices Act (FCPA) declinations in 2017 and the general investigations landscape. Miller & Chevalier, which analyzes FCPA enforcement data for its quarterly FCPA Review newsletter, identified more than 20 FCPA declinations in 2017, through the end of July. That figure, which represents only those declinations that have been made public, is on track to outpace every year’s annual total since the firm began tracking declinations in 2008. Because U.S. enforcement agencies do not publicly acknowledge every FCPA declination, tracking them is a complex undertaking. "Ideally, a 'declination,' as defined, would be a case that the Department of Justice [DOJ] or SEC [Securities and Exchange Commission] could have prosecuted, had the facts to prosecute, but chose not to in recognition of a company's decision to cooperate," Bohn said, adding that the reasons underlying the agencies' decisions are rarely that simple. For example, he said, Miller & Chevalier has represented several companies in which the DOJ notified the company that it was closing its FCPA investigation without an enforcement action, but never offered an explanation as to why. "It could be a confluence of factors," he said. The reasons behind the recent uptick are difficult to identify due to this lack of clarity, but one possible reason is that the agencies are reevaluating their current FCPA caseload. The sense is that the Fraud Section wants to "clear the decks" and close investigations lingering from the Obama administration concerning activities that the new administration feels don't merit further scrutiny, Bohn said. These declinations notwithstanding, the agencies remain focused on pursuing potential FCPA violations and have initiated at least 26 new FCPA investigations this year, to date, according to an analysis by Miller and Chevalier. That figure is currently on pace to exceed the total number of new FCPA investigations identified in any other year over the past decade, the firm found.