Report: FCPA investigations, enforcement actions hit 10-year lows in 2021

The “2021 FCPA Year in Review,” released Friday by the FCPA Clearinghouse at Stanford Law School in collaboration with law firm Sullivan & Cromwell, found there were 18 FCPA enforcement actions filed last year—14 by the Department of Justice (DOJ) and four by the Securities and Exchange Commission (SEC). The total represented the lowest number of enforcement actions brought in a year since at least 2012, when the clearinghouse began tracking FCPA enforcement.

The figure is well below the 10-year average of 36 actions per year, as identified by the clearinghouse.

Corporate sanctions in 2021 totaled $360 million, of which more than 80 percent was represented by the FCPA-related fine paid by Credit Suisse Group to settle the bank’s role in a long-running tainted loan corruption scheme in Mozambique. The total is the third-lowest amount tracked by the clearinghouse since 2012 ($276 million in 2012, $139 million in 2015).

“Typically, the bulk of the sanctions that government regulators impose on FCPA violators in any given year can be attributed to just a handful of companies,” the report’s authors said. They noted enforcement actions totaled a near-record $5.8 billion in 2020, the year Goldman Sachs agreed to pay $2.9 billion in a global settlement regarding its role in the 1MDB scandal.

The number of FCPA investigations launched by the DOJ and SEC in 2021 was only three, the lowest total in a decade and the continuation of a general downward trend in disclosed investigations that began in 2018, the report said.

As of the close of 2021, the report said it found “at least 32 companies appear to be the subject of ongoing FCPA-related investigations by U.S. authorities.”

There are signs the Biden administration is ramping up its enforcement regarding corruption-related crime, which might lead to an increase in FCPA enforcements. President Joe Biden released his strategy on stamping out foreign corruption and bribery in December, building upon his declaration in June that combating corruption is a national security priority.

While the number of FCPA enforcement actions, sanctions, and investigations might increase under the Biden administration, it may take a year or two for the results to show, said William Garrett, senior content manager at the FCPA Clearinghouse and Rock Center Law Insights at Stanford University. FCPA investigations tend to take about three years to complete, Garrett said.

The clearinghouse report also found a decline in the number of individuals criminally prosecuted by the DOJ and SEC. The DOJ prosecuted 16 individuals for FCPA violations in 2021, down from 25 in 2020 and 40 and 42 in 2018 and 2019, respectively.

“[T]he vast majority of individuals criminally charged with FCPA-related offenses in 2021 appear to be either connected to small or privately held companies with no parallel DOJ enforcement actions, or the foreign officials alleged to have accepted bribes,” the report stated. “Indeed, none of the individual defendants criminally charged in 2021 was connected to the large companies that account for the most significant FCPA violations and fines.”

These findings continue a trend that began in at least 2019, the report said.