FCPA Enforcement Expectations Under President Trump

FCPA Enforcement Expectations Under President Trump

By Jinyoung Seok, Managing Editor

The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 in the wake of reports of numerous U.S. businesses were making large payments to foreign officials to secure business.[1] It prohibits corruptly giving, promising, or offering anything of value to a foreign governmental official, political, party or party official with the intent to influence that official in his or her official capacity or to secure an improper advantage in order to obtain or retain business.[2] It also requires issuers to maintain accurate books and records and reasonably effective internal controls.[3]

In today’s climate of substantially increased enforcement, any company involved in business that extends beyond U.S. borders, either directly or through the actions of an affiliate or subsidiary, must focus on FCPA compliance. There has been an increase in broad enforcement across a wide variety of industries—healthcare industry being the hotspot—and throughout the world.[4] Recent years have witnessed a dramatic escalation in the penalties imposed on those who violate the FCPA. For example, 2016 was the banner year for FCPA enforcement, where the SEC and DOJ initiated 56 FCPA enforcement actions and collected a record-breaking $2.46 billion in penalties.[5]

However, past critical comments of the FCPA by President Trump, along with his general policy position of lessening regulatory oversight of U.S. companies, have caused speculation as to whether the new administration will curtail FCPA enforcement.[6] While the president’s executive power to limit FCPA enforcement and his nominations to head agencies that influence the enforcement of the FCPA may signal an easing of FCPA enforcement, companies should continue to maintain a robust and effective anticorruption compliance program given the domestic and foreign enforcement trends. Unlike most statutes, many FCPA enforcement actions are the result of corporate self-reporting and internal investigations.[7] The voluntary disclosure provides significant benefits to a party that violated the FCPA because both the DOJ and the SEC offer reductions to criminal and civil penalties depending on a party’s level of cooperation.[8] It is unlikely that the current FCPA model would undergo drastic changes given that companies, who do the hard work of conducting internal investigations and report their findings, and not the government, bear a significant portion of the FCPA enforcement costs.

Even if FCPA enforcement efforts weaken, growing cross-border cooperation and multinational coordination in the fight against global corruption put most U.S. companies subject to other anticorruption laws in other jurisdictions similar to the FCPA. Laws.[9] As global markets become more interconnected and countries increasingly share information, having a robust anticorruption compliance program will help companies to avoid the risks of being entangled in concurrent investigations in the U.S. and local markets.[10] Moreover, it will continue to help U.S. companies operating overseas to protect profits and generate positive name recognition and a reputation for integrity—all of which redound to the benefit of the companies’ stakeholders.

Bottom line, despite the speculations, unless and until significant changes occur, companies operating aboard should make anticorruption compliance a top priority. They should constantly assess their compliance programs, conduct thorough assessment of the evolving risks facing their businesses, and ensure that their compliance programs are appropriately designed to address those risks. It is in the companies’ best interest to continue to employ robust and effective anticorruption compliance programs to avoid paying millions of dollars at home and aboard for corruption-related offenses, or at least as a necessary means of penalty mitigation, if not avoidance.

[1]See U.S. Dep’t. of Justice, Foreign Corrupt Practices Act: An Overview (2017), https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act.

[2] 15 U.S.C. §§ 78dd-1(a), 78dd-2(a), 78dd-3(a).

[3] 15 U.S.C. § 78m(b)(2)(A) (2002).

[4] See Client Memorandum, Paul, Weiss, Rifkind, Wharton & Garrison LLP, FCPA Enforcement and Anti-Corruption Developments: 2016 Year in Review (Jan. 19, 2017), https://www.paulweiss.com/media/3897243/19jan17_fcpa_year_end.pdf (discussing the global span of FCPA cases and the locations of the alleged improper conduct in 2016).

[5] See Kristen Savelle, The FCPA in 2016: Analyzing the Numbers, The Wall St. Journal (Jan. 23,2017), http://blogs.wsj.com/riskandcompliance/2017/01/213/the-fcpa-in-2016-analyzing-the-nmbers/ (stating that the collective enforcement action of the SEC and DOJ represented a 167% increase over 2015).

[6] See Thomas R. Fox, FCPA Enforcement Going Forward in the Trump Administration, FCPA Compliance Report (Nov. 13, 2016), http://fcpacompliancereport.com/2016/11/fcpa-enfrocement-going-forward-in-the-trump-administration (noting President Trump’s past remarks on the FCPA being “a horrible law” finding it “ridiculous” that the U.S. would criminalize bribes that occur abroad).

[7] See U.S. Dep’t of Justice, The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan & Guidance (Apr. 5, 2016), https://www.justice.gov/archives/opa/blog-entry/file/838386/download.

[8] Id.

[9] See, e.g., OECD, Convention on Combating Bribery on Foreign Public Officials in International Business Transactions, http://www.oecd.org/corruption/oecdantibriberyconvention.htm.

[10] See id. (“[A]n international approach is being taken to combat an international problem. We are sharing leads with our international law enforcement counterparts, and they are sharing them with us.”).