On 5 July 2017, Shearman & Sterling published its bi-annual FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act, covering developments in FCPA and global anti-corruption enforcement over the first six months of 2017.

After a banner year in 2016 that included a record twenty-seven corporate enforcement actions, the two US enforcement agencies, the US Department of Justice and the SEC, continued this momentum over the course of the first three weeks of 2017. During this short span, the agencies brought six corporate enforcement actions and charges against six individuals. Following this spurt, however, there were no corporate FCPA enforcement actions until the declination with disgorgement in Linde announced on June 20, which was subsequently followed by the declination with disgorgement in CDM Smith announced ten days later on June 30. Although it is tempting to view this as a potential shift in enforcement practices under the Trump administration, the rest of 2017 will be more indicative of whether we are on the cusp of a new era of FCPA enforcement.

Among the highlights thus far from 2017 were:

  • Eight corporate enforcement actions with total sanctions of $272 million. This represents a significant drop from the twelve enforcement actions with total sanctions of $920.8 million that had been brought at this time in 2016;
  • Much like the VimpelCom penalty in 2016, the Rolls-Royce penalty greatly distorts the picture, raising the average corporate sanction for 2017 to $34 million, whereas the true average, with outliers excluded, is slightly over half of this figure ($16.4 million). The median sanction of $12.1 million is broadly in line with those from 2015 ($13.4 million) and 2016 ($14.4 million);
  • The Supreme Court's decision in Kokesh has the potential to dramatically alter the way that the SEC brings FCPA enforcement actions by imposing a five year statute of limitations on disgorgement; and
  • Two of the year's enforcement actions have arisen out of breached deferred prosecution agreements ("DPAs"), a phenomenon that we may see more of given the large number of DPAs that have been entered into since FCPA enforcement actions significantly increased in the late 2000s.

Our client publication FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act is available at:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.