At the start of each year are a number of reviews of the prior year in FCPA and more general anti-corruption compliance enforcement. One of the top reviews is the Shearman & Sterling annual digest. This year is no exception. In this podcast, I visit with firm partner Philip Urofsky who discusses some of the top highlights from this year’s digest. In this podcast we discuss:
- The number of corporate enforcement actions, with total sanctions of approximately $2.9 billion, made 2018 a fairly typical year in terms of level of FCPA enforcement activity. Although only four more enforcement actions were brought in 2018 than in 2017, the total assessed sanctions were nearly $900 million higher than in 2017, making the penalties assessed in 2018 the second-highest of any year.
- Three outlier enforcement actions (Petrobras, Société Générale, and PAC) greatly distort the picture, raised the average corporate sanction for 2018 to $170.8 million, whereas the true average, with outliers excluded, is significantly less than this figure ($17.9 million). This type of difference between the true average and average excluding outliers is typical: in 2017 the true average was $151.2 million while the average excluding outliers was $83.3 million, and in 2016 the true average was $223.4 million while the average excluding outliers was $13.2 million.
- The median sanction of $9.2 million is down from recent years ($29.2 million in 2017, $14.4 million in 2016, and $13.4 million in 2015).
- What are some of the implications from the Second Circuit’s decision in Hoskins? Does it have the potential to alter the scope of FCPA prosecutions and alter the investigation process by limiting the number of defendants that are within the jurisdictional grasp of the enforcement authorities?
- 2018 saw the first coordinated resolution with French authorities in a foreign bribery case, Société Générale. Does it herald the emergence of France as an important global anti-corruption authority?
- The DOJ continued its recent trend of updating enforcement policies, announcing: (i) the new anti-piling on policy in matters involving multiple enforcement authorities; (ii) an updated policy on corporate monitors; and (iii) updates to the policy on cooperation credit originally set forth in the Yates Memo. In addition, the effect of the 2017 FCPA Corporate Prosecution Policy, was also apparent in 2018’s DOJ matters.
You can link to the Shearman & Sterling 2019 FCPA Digest at:
The link to Shearman & Sterling’s new FCPA site is, http://fcpa.shearman.com/