FCPA Enforcement Activity In Early 2018: Part 2

Law360

06.06.2018

In this article, the second in a two-part series, Collmann Griffin discusses Foreign Corrupt Practices Act (FCPA) investigations that were closed and opened in the first quarter of 2018. There were nine investigations closed without enforcement by the U.S. Department of Justice (DOJ) and U.S. Securities and Exchange Commission (SEC) in the first quarter of 2018, above the average number for the first quarter over a 10-year period. "One likely factor is that the DOJ and SEC are continuing to investigate potential FCPA violations, but have become more selective in the actions they choose to pursue — deciding against enforcement, for example, in cases in which they deem a company's cooperation and remediation efforts to have been satisfactory," Griffin wrote, adding that the growth of corporate compliance programs could also support this trend. "Enhanced compliance programs, together with disclosure incentives and cooperation, are a goal that both agencies support, and may reward in specific circumstances. It is difficult, however, to determine whether this connection is real, given the lack of complete public data regarding agency decisions," he wrote. Only three new publicly-announced investigations were launched in the first quarter, which is slightly below average. While figures from U.S. enforcement agencies are important, they are not the only figures companies should focus on. "Perhaps more important today, enforcement authorities outside the United States continue to increase their enforcement of anticorruption laws against multinational companies and their employees and agents, either under foreign bribery laws enacted pursuant to multilateral conventions, or under domestic corruption laws," Griffin wrote. "Thus, in the current operating environment for many companies, enforcement risk for potential corruption can emerge from many possible sources."

Details on Part 1 of this series can be found here.