FCPA Year-In-Review: 2024 Developments And Predictions For 2025

I. Introduction

Foreign Corrupt Practices Act (FCPA) enforcement activity increased overall in 2024, with a notable uptick in Department of Justice (DOJ) enforcement actions compared to 2023, despite a decrease in public Securities and Exchange Commission (SEC) enforcement actions. Collectively, the DOJ and SEC brought a total of 38 enforcement actions, including 14 corporate and 24 individual enforcement actions. The January 2025 change in administration brings some uncertainty as to the prioritization of anti-corruption enforcement going forward. Despite President Donald J. Trump's prior vocal criticism of the law,¹ FCPA enforcement during Trump's first term was robust, averaging more than 40 DOJ enforcement actions and 14 SEC enforcement actions per year between 2017 and 2020. Early actions in President Trump's second term, however, indicate that priorities may be recalibrated this time around, and it is unclear how these changes may affect anti-corruption and other white collar enforcement efforts.

Below are five notable takeaways concerning FCPA enforcement in 2024:

1. Volume of DOJ Trials. FCPA trials are rare and resource-intensive given the complex nature of international bribery schemes. In 2024, the DOJ brought—and secured convictions—in four trials. Two defendants were convicted for their roles in separate bribery schemes involving state-owned oil and gas companies in Latin America, including Petrobras, the Brazilian state-owned petroleum corporation, Petroecuador, the Ecuadorian state-owned oil company, and PEMEX Procurement International (PPI), a subsidiary of PEMEX, the Mexican state-owned oil and gas company, which have been at the heart of numerous FCPA matters in recent years. The other two trials involved defendants who were high-ranking foreign officials in Mozambique and Ecuador. Currently, five trials are scheduled for 2025.
2. Whistleblower Pilot Programs. The DOJ's Criminal Division launched two pilot programs to incentivize self-policing and disclosure in 2024. In April, the DOJ announced the Pilot Program on Voluntary Self-Disclosures for Individuals, which provides clarity concerning scenarios in which the DOJ will offer non-prosecution agreements (NPAs) to individuals who voluntarily disclose criminal misconduct.² To be eligible, whistleblowers must disclose the extent of their involvement in the misconduct and cannot be the chief executive officer or chief financial officer of the organization. Separately, in August, the DOJ launched the Corporate Whistleblower Awards Pilot Program.³ This program is designed to close gaps in other agencies' whistleblower programs, which do not cover the full scope of corporate crimes investigated and prosecuted by the DOJ.
3. Temporary Amendment to the Corporate Enforcement Policy. In connection with the announcement of the Corporate Whistleblower Awards Pilot Program, the DOJ also temporarily amended the Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP). Of significant note, pursuant to the amendment, companies that receive an internal report of misconduct from a whistleblower who also makes a whistleblower submission to the DOJ are able to obtain the full benefits of the CEP, as long as the company self-reports to the DOJ within 120 days after receiving the whistleblower allegation, and the disclosure takes place before the DOJ reaches out to the company.⁴
4. Scope of the Internal Accounting Controls Provision. The SEC was dealt a significant blow by the Southern District of New York limiting the scope of the internal accounting controls provisions of Section 13(b)(2)(B) of the Securities Exchange Act of 1934, which were enacted as part of the FCPA in 1977 and have been used to charge companies in both foreign bribery and non-bribery related matters. In SEC v. SolarWinds Corp., the court held that those provisions do not cover a company's cybersecurity controls, stating that Section 13(b)(2)(B) applies to a "system of internal accounting controls," which means "a company's financial accounting" and "does not govern every internal system a public company uses to guard against unauthorized access to its assets, but only those qualifying as 'internal accounting' controls."⁵ This is arguably narrower than the SEC's typical interpretation of these provisions, which they have used broadly to sweep in controls such as third-party procedures, training, and other compliance processes that do not strictly relate to financial accounting. This decision may provide a basis to push back on the SEC's expansionist views of the FCPA accounting control provisions in other contexts.
5. Updates to the DOJ's Evaluation of Corporate Compliance Programs. The DOJ announced a number of updates to the Evaluation of Corporate Compliance Programs (ECCP) in September 2024, certain of which were aimed at addressing emerging risks in artificial intelligence (AI).⁶ The updates require prosecutors to assess whether companies have conducted adequate risk assessments of technologies they deploy and implemented controls to mitigate those risks. The practical impact of this guidance remains uncertain.

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Footnotes

1. In a 2012 interview on CNBC's "Squawk Box," Mr. Trump called the FCPA a "horrible law" that "put [the U.S.] at a huge disadvantage." Peter W. Klein, How will a new Trump administration prosecute corruption?, NBC NEWS (Nov. 16, 2024), https://www.nbcnews.com/politics/national-security/trump-administration-prosecute-corruption-rcna179281.

2. Criminal Division's Voluntary Self-Disclosures Pilot Program for Individuals, U.S. DEPARTMENT OF JUSTICE: ARCHIVES (Apr. 22, 2024), https://www.justice.gov/archives/opa/blog/criminal-divisions-voluntary-self-disclosures-pilot-program-individuals.

3. Criminal Division Corporate Whistleblower Awards Pilot Program, U.S. DEPARTMENT OF JUSTICE: CRIMINAL DIVISION (last visited Jan. 28, 2025) https://www.justice.gov/criminal/criminal-division-corporate-whistleblower-awards-pilot-program.

4. U.S. Department of Justice, 9-47.120 - Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy, available at https://www.justice.gov/criminal/criminal-fraud/file/1562831/dl; U.S. Department of Justice, Temporary Amendment to the Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy (Aug. 1, 2024), available at https://www.justice.gov/criminal/media/1362316/dl?inline.

5. Sec. & Exch. Comm'n v. SolarWinds Corp., 2024 WL 3461952 at *49, *51 (S.D.N.Y. July 18, 2024) (citations omitted) (emphasis in original).

6. U.S. Department of Justice: Criminal Division, Evaluation of Corporate Compliance Programs (updated Sept. 2024), available at https://www.justice.gov/criminal/criminal-fraud/page/file/937501/dl?inline=.

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