FCPA Enforcement in 2017

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The end of the Obama Administration was one of the busiest in the resolution of government investigations ever. The SEC and DOJ wrapped up nine Foreign Corrupt Practice Act investigations in the course of two months.

The enforcement actions involved:

  • Odebrecht and Braskem: $3.5 billion (US, Brazil and Switzerland)
  • Rolls Royce: $800 million (US, UK and Brazil)
  • Teva: $519 million
  • General Cable: $82 million
  • Biomet: $30 million
  • SQM: $15 million
  • Mondelez: $13 million
  • Orthofix: $7.4 million
  • Las Vegas Sands: $6.96 million

It was a big part of a busy time in government enforcement. Overall, companies agreed to pay around $20 billion to resolve possible enforcement actions involving a broad range of violations from mortgage fraud to automobile manufacturing issues.

There has been a great deal of speculation whether the Obama Adminstration’s enforcement record would continue into the Trump Administration, particularly regarding FCPA enforcement under President Trump. In 2012, Trump declared the FCPA an outrageous law that criminalized activity beyond our borders. President Trump has nominated Jay Clayton to head the Securities and Exchange Commission. A few years ago, Clayton led a paper that criticized the DOJ and SEC for overaggressive enforcement of the law.

Nevertheless, there are reasons to believe that the government will continue to investigate and prosecute FCPA cases. First, Attorney General Nominee Jeff Sessions was asked directly whether in light of President Trump’s comments he would enforce the FCPA, and he indicated he would (with a few caveats).

Second, authorship of a paper while in private practice is not necessarily reflective of the positions that an attorney will set forth while in government office. For example, Andrew Weissmann, the Chief of the DOJ’s Fraud Section, co-authored a white paper for the U.S. Chamber of Commerce protesting overzealous FCPA enforcement in 2010 before entering government service. Yet, no one can look back on his period of government service and question the strength of FCPA enforcement.

President Trump and the Republican Party have a long list of priorities while in office, including replacing Obamacare and repealing portions of Dodd-Frank. While weakening the FCPA would follow through on the promise to get government out of the way of business, it is also in philosophical opposition to his mantra of cleaning up the swamp in Washington D.C. Will he truly be able to reconcile the

We are holding off judgment until we have more information, but it is definitely a subject of relevance to potential FCPA whistleblowers. If you are an individual with evidence of bribery by a business, we strongly urge you to consult with an attorney before internal or external reporting. To speak to one of our whistleblower attorneys, call 1-800-590-4116.