The fourth quarter of 2017 was marked by Department of Justice (DOJ) policy change announcements, robust international cooperation, and a challenge to the conventional wisdom that Foreign Corrupt Practices Act (FCPA) enforcement will be diminished under the current administration.
In late November, the DOJ announced a significant policy change with the release of its FCPA Corporate Enforcement Policy, which modified the FCPA Pilot Program and made it permanent as part of the U.S. Attorneys’ Manual. The new policy created a presumption of a declination if a company self-discloses, cooperates, and remediates.
Although the fourth quarter of 2017 was relatively slow in terms of the number of FCPA cases resolved by the government, when compared to other quarters, the two cases filed by the DOJ (SBM Offshore and Keppel Offshore & Marine) were both global settlements in which more than $650 million in penalties were allocated between the DOJ and foreign law enforcement. For example, in the SBM case, the DOJ, in calculating its fine, credited SBM’s payment in 2014 to Dutch authorities over related conduct and also credited penalties likely to be paid to Brazil authorities in a future action. This crediting of penalties for the same conduct was not possible just several years ago and reflects closer international collaboration and a determination by the U.S. authorities to avoid “piling on.”
The U.S. Securities and Exchange Commission (SEC) did not file any FCPA cases in the fourth quarter, but that should not be viewed as any indication that enforcement of the FCPA may be on the decline. To the contrary, leaders from both the DOJ and SEC made public statements this quarter reaffirming their commitment to robust enforcement of the FCPA.
Special thanks to Andrew Lind, who contributed to this report.