In 2018, the U.S. Department of Justice (DOJ) saw a number of courtroom successes in the prosecution of individuals for FCPA (Foreign Corrupt Practices Act) violations, demonstrating that despite a number of prior courtroom disappointments, that they can successfully prove individual liability and responsibility when taken to task in Federal Court.
In addition, the government is utilizing corollary crimes, including money laundering, tax evasion, wire fraud and bank fraud, not only when charging FCPA cases, but when charging individuals, including the bribe takers and other co-conspirators, that might fall outside the scope of the FCPA. The government is also once again using covert means in gathering evidence for FCPA cases, including undercover cooperators, undercover FBI agents, and non-consensual wire-taps.
Combined with the use of criminal and civil forfeiture, the Department of Justice is clearly deploying more criminal code ‘tools’ when charging individuals, as well as corporations. We have also seen other Federal Agencies utilizing their own investigatory resources in global corruption cases, as IRS Criminal Investigators did with the FIFA investigation.
In addition, the ‘teeth’ of international law enforcement and cooperation have never been sharper. We have seen prosecutorial and investigatory cooperation on a global basis, including the bribery scandals of Petrobras in Brazil, and the 1MDB case in Malaysia, among others. In many of those cases, requests for extradition and the use of the Mutual Legal Assistance Treaty (MLAT), to gather and certify evidence from abroad, have been utilized on a robust basis.
Recent DOJ statements about not ‘piling on’ carbon-copy charges, where one country is taking an enforcement lead, have proven as just not words, but deeds, where we have seen how criminal fines have been disbursed among countries, and where the U.S. is not seeking extradition of individuals who have been charged abroad. It’s become commonplace to see Department of Justice Press Releases where a number of international law enforcement agencies have been acknowledged and thanked for their support and cooperation.
While there has been much talk of the ‘dilution’ of FCPA enforcement in our current political environment, the record does not indicate a shift in approach. The U.S. government, including the DOJ and the Securities and Exchange Commission, continue a steady stream of press releases relating to corporate and individual fines, settlements, guilty pleas and convictions. Nor has there been any noticeable reduction overseas where other countries, including the United Kingdom and France, among others, have had robust anti-bribery enforcement activity, and where countries, such as Argentina, as an example, are standing up anti-corruption laws along with the prosecutorial and investigatory resources needed for enforcement.
In sum, our anti-bribery enforcement world, while not perfect, is certainly one where the tide of global enforcement and cooperation is on the rise.
About Richard Bistrong
Richard Bistrong spent much of his career as an international sales executive and currently consults and speaks on foreign bribery, ethics and compliance issues from that front-line perspective. In 2018, Richard was named by Thomson Reuters as one of the top 50 social influencers in risk and compliance. In 2017, he was named by Compliance Week as a Top Mind in the field of Governance, Risk and Compliance, and in 2016 he was named one of Ethisphere’s 100 Most Influential in Business Ethics. Richard is a Contributing Editor of the FCPA Blog and his chapter “The Anatomy of a Bribe” appears in the 2016 edition of the Trace International’s How to Pay a Bribe. Richard presents to diverse groups such as the World Bank, the International Anti-Corruption Academy, international law enforcement, as well as to multinationals and conferences on a global basis. Richard can be reached via his Website at www.richardbistrong.com email at RichardTbistrong@gmail.com and he often tweets at @richardbistrong.