Overview
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2015 was a year of significant change in the United States’ efforts to prosecute transnational corruption cases, as well as a year of noteworthy legal developments and major enforcement efforts in major trading nations around the world. Continuing the pattern of the last few years, the overall numbers of Foreign Corrupt Practices Act (FCPA) enforcement actions brought by the US Department of Justice (DoJ) and the Securities and Exchange Commission (SEC) continued at levels below their 2009-2011 peaks, as did the aggregate dollar value of monetary sanctions imposed and the number of new investigations disclosed to the public. The agencies brought a combined total of 23 FCPA-related enforcement actions, 11 by the DoJ and 12 by the SEC. In contrast with recent years of record-setting monetary sanctions – such as 2014, which saw over $1.56 billion in fines, penalties and disgorgement levied against companies and individuals – in 2015, DoJ and SEC imposed a comparatively light $142.7 million in monetary sanctions.
The raw FCPA enforcement statistics do not, however, tell the full story of the United States’ and other countries’ anti-corruption enforcement exploits in the past year. Rather than reflecting a de-prioritization or decline in FCPA enforcement efforts by the SEC and DoJ, we believe they reflect evolving enforcement policies and priorities based on increasing experience and different agency missions and authorities. Early 2016 prosecutions of VimpelCom and Olympus have already demonstrated the fallacy of reading too much into year-to-year statistics. In our view, 2016 forward will see the DoJ and SEC pursuing foreign bribery in a more targeted, nuanced way than they may have done previously, with each agency focusing more on its core competency and statutory mission, while exhibiting a willingness to allow other countries’ enforcement agencies to take the lead on matters when those countries’ interests are primarily affected.
This evolution can be seen in the DoJ’s and SEC’s actions in 2015. Notably, it was the first year in at least a decade in which the SEC and DoJ did not bring joint enforcement actions against a company. Indeed, DoJ did not charge any companies in 2015 without also criminally charging associated individuals. DoJ brought only two cases against companies all year, with the large majority of its prosecutions being directed against individuals (8); it also declined to bring enforcement action against companies it investigated in four instances. The DoJ’s release in September 2015 of the so-called “Yates Memorandum,” mandating full disclosure of information, including with regard to culpable individuals, for companies to secure cooperation credit, is a reflection of this shift in priorities.[1]
For its part, the SEC, pursuant to its mandate to regulate and protect the integrity of US securities markets, forged a more independent path than in recent years. Of the 12 enforcement actions the SEC brought in 2015, all involved actions against companies. Two of the corporate cases also involved individuals. Moreover, a number of the SEC’s corporate enforcement actions departed from the agency’s prior enforcement practice and advanced novel – and arguably aggressive – legal theories of liability targeted as much at companies’ allegedly deficient control environments as any alleged underlying improper or illegal payment activity. [2]
Another important piece of the maturing enforcement environment in 2015 was increased use by US enforcement agencies – in particular, the DoJ - of alternative tools to investigate and prosecute foreign bribery corruption, and not just on the “supply side.” In 2015, there was continued activity by the DoJ’s Kleptoacracy initiative in asset forfeiture cases, and high-profile cooperation with law enforcement agencies outside the US, exemplified by the joint US-Swiss investigation into corruption at FIFA.
While enforcement policies may have evolved, parallel civil risks continue to grow. Collateral litigation such as shareholder derivative actions, whistleblower litigation in federal court, and other actions continued to be filed, compounding the risk picture for companies facing allegations of corruption. The SEC’s Dodd-Frank whistleblower program, in its fifth year, continued to receive numerous tips from inside and increasingly outside the United States, and continued to spawn internal investigations that companies had little choice but to address.
Outside the United States, the global trend towards increased enforcement, and legal reform contributing to anti-corruption enforcement efforts continued. The UK prosecuted its first cases under Section 7 (Failure to Prevent Bribery) of the Bribery Act 2010. A number of Continental European countries, in particular in the Nordic region, continued to ramp up their enforcement efforts. Canadian authorities continued to investigate alleged corruption abroad and domestically, and are considering whether a Dodd-Frank style whistleblower bounty program administered by the Ontario Securities Commission should be implemented in 2016. A significant set of anti-corruption enforcement players whose profiles have grown in recent years – the multilateral development banks, led by the World Bank – also continue to make their presence felt in international anti-corruption enforcement, as cooperation between those institutions and national law enforcement authorities continued – although, as described below, the World Bank’s ability to share evidence with national law enforcement has come under threat in recent months.
In sum, we believe that 2015 saw important shifts in the FCPA/anti-corruption enforcement environment around the world. While US enforcement will remain robust, the compliance landscape going forward will continue to become more complicated for companies to navigate: US efforts likely will continue to be focused on individuals as well as companies, affecting how companies must respond to allegations and issues; the collateral risks to companies subject to US investigation and enforcement actions will persist; more and different countries will seek to enforce their own laws; and still-less-appreciated risks such as those presented by investigations conducted by the World Bank and other International Financial Institutions (IFIs) will increasingly continue to catch companies and individuals unaware.
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[1] See Individual Accountability for Corporate Wrongdoing, DoJ (Sept. 9, 2015), available at http://www.justice.gov/dag/file/769036/download.
[2] See Speech of Andrew Ceresney, Director, Div. of Enforcement at CBI’s Pharmaceutical Compliance Congress in Washington D.C., SEC (Mar. 3, 2015), http://www.sec.gov/news/speech/2015-spch030315ajc.html (“Internal control problems have been prominently featured in recent enforcement cases we have brought in the financial reporting area, even in cases without accompanying charges of fraud.”); Keynote Address of Andrew Ceresney, Director, Div. of Enforcement at ACI’s 32nd FCPA Conference, SEC (Nov. 17, 2015), http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-15.html (noting that the Commission intends to “enforce the FCPA to the fullest extent of the statute.”).
