Answer ... A few recent trends have emerged in enforcement of the Foreign Corrupt Practices Act (FCPA):
- Increased incentives to cooperate: The most significant recent change in FCPA enforcement is the Department of Justice’s (DOJ) FCPA Corporate Enforcement Policy, issued in November 2017 and updated in March 2019. The policy sets forth a presumption of declination if no aggravating circumstances are present and corporate entities provide full cooperation, including voluntary self-disclosure and timely and appropriate remediation, among other things. If the DOJ decides declination is appropriate, the corporate entity is still required to pay disgorgement, forfeiture and/or restitution, as appropriate. If the corporate entity does not meet all of those requirements for a declination, the policy provides avenues for the entity to receive up to a 50% reduction in criminal fines and to avoid the appointment of an independent compliance monitor.
- Multi-jurisdictional enforcement and investigations: The DOJ and Securities and Exchange Commission seek to closely coordinate their investigations and enforcement actions – not only between themselves, but also with foreign authorities. As other countries have implemented anti-bribery laws and/or increased enforcement of anti-corruption laws, there has been increased coordination across jurisdictions.
- Individual accountability and liability: US government authorities continue to emphasise holding individuals – not just corporate entities – accountable and liable for FCPA violations. In several recent enforcement actions against corporate entities, individuals were also criminally charged for their involvement in the bribery violations.
In 2019 a group of bipartisan legislators sponsored the Foreign Extortion Prevention Act, which would criminalise foreign officials demand for, or receipt of, bribe payments.