Under the Trump Administration, the number of DOJ and SEC corporate enforcement actions declined, with only five corporate FCPA resolutions in the last 49 weeks of the year. The number of 2017 Trump Administration corporate FCPA enforcement actions was a steep drop from the 25 corporate resolutions in 2016 and even lower than the number of corporate resolutions in the last three weeks of the Obama Administration.
However, the slowdown in corporate enforcement actions has not led to a slowdown in corruption investigations. The DOJ, FBI, and SEC continue to devote significant resources to FCPA investigations and prosecutions, and the enhanced collaboration between U.S. enforcement authorities and their foreign counterparts has increasingly led to heightened anticorruption enforcement activity in jurisdictions around the world.
There were six key highlights from 2017 Foreign Corrupt Practices Act ("FCPA") enforcement.
- The number of corporate FCPA enforcement actions in the first year of the Trump Administration—or 49 weeks, to be precise—was lower than any full year in the last 10 years and even lagged behind the first three weeks of January, which marked the end of the Obama Administration. There was a corresponding increase in publicly reported corporate FCPA declinations. Overall FCPA enforcement against individuals increased in 2017, however, consistent with recent Department of Justice ("DOJ") and Securities and Exchange Commission ("SEC") initiatives to focus on individual accountability.
- The Deputy Attorney General announced a new FCPA enforcement policy that replaces the FCPA Pilot Program and creates a presumption that absent "aggravating circumstances," companies will not face criminal prosecution or other DOJ enforcement actions based on self-disclosed FCPA violations, full cooperation, and timely and appropriate remediation.
- Significant delays in replacing the Assistant Attorney General for the Criminal Division of the DOJ and several senior anticorruption enforcement positions have created some uncertainty about whether the full impact of the Trump Administration on FCPA enforcement has been realized.
- The DOJ did not require monitors in any of its three Trump Administration corporate FCPA resolutions. This is a marked change from 2016, when seven DOJ corporate FCPA resolutions required the company to hire an independent monitor for a three-year term. In 2017, the SEC required three compliance monitors, each in a so-called "repeat offender" action.
- The U.S. Supreme Court significantly limited the SEC's ability to collect disgorgement by subjecting disgorgement to a five-year statute of limitations.
- The DOJ coordinated with foreign authorities in the Netherlands, Switzerland, the United Kingdom, Singapore, and Brazil in the investigation and resolution of four major global anticorruption cases, showcasing the continuing development of anticorruption enforcement in jurisdictions outside the United States and the importance of coordinating investigations and resolutions with multiple sovereigns.
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