The Odebrecht and Braskem FCPA enforcement actions were not only stunners for the amounts involved but also as they portend a new trend in the global fight against bribery and corruption. The amount of the fines and penalties have a range from between $4.5bn to $2.6bn which is unusual in and of itself. However the amount payable to the US Treasury based on this fine has been estimated to be as low as $420 million but could go higher, if Odebrecht is found to have an ability to pay.

The key takeaway from these two matters is the true global scope of anti-corruption cooperation in not only investigations but also enforcement. As noted in the Justice Department Press Release, “the Ministerio Publico Federal in Brazil the Departamento de Polícia Federal and the Office of the Attorney General in Switzerland provided significant cooperation.” In addition to the fine amount payable to the US, Switzerland will receive a similar amount and Brazil will receive the lion’s share based upon its spade work in the investigation phase; all coming out of the scandal surrounding Petrobras and the Operation Car Wash.

It was most interesting that this settlement comes shortly on the heels of the remarks by Kara Brockmeyer, Chief, FCPA Unit, Division of Enforcement at the SEC, and Daniel Kahn, Chief, FCPA Unit, Fraud Section, Criminal Division at the DOJ, in early December at the ACI National FCPA Conference on  the increase in international cooperation and enforcement. Both the SEC and Justice Department have worked diligently to establish relationships with prosecutors across the world to help fight bribery and corruption. That seeding is now bearing fruit.

There was yet another aspect to this settlement. Odebrecht apparently moved quickly to have the Justice Department lead the overall global settlement or as Brockmeyer might say “split up the pie” of the total amount of fines and penalties. This clearly presages the US as the go-to jurisdiction for resolution to make the settlement as global as possible. 

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