I. 2022 ENFORCEMENT TRENDS AND KEY DEVELOPMENTS

A. Introduction

While Foreign Corrupt Practices Act (FCPA) enforcement activity has not come close to returning to the heights seen a few years ago, 2022 reflected significant increases from the prior year in both the number of cases against corporate defendants (eight vs. four) and the combined total of monetary penalties levied ($1.56 billion1 vs. $459 million). Consistent with this upward trend of enforcement activity, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) continue to signal that anti-corruption enforcement is a priority and that there will be significant and growing enforcement efforts going forward. Below are four key takeaways regarding FCPA enforcement in 2022:

1. Updated Enforcement Guidance. US authorities continued to provide further detail and clarification regarding their approach to corporate enforcement. Recent key guidance indicates (1) continued priority focus on individual accountability and corporate cooperation in individual prosecutions;2 (2) continued DOJ efforts to incentivize voluntary self-disclosure, cooperation, robust corporate compliance programs, and remediation;3 (3) a revised approach to prior misconduct;4 and (4) a restricted use of DPAs for certain types of offenders.5 2. New Senior-Level Hires in the DOJ Fraud Section. Two senior-level hires in the DOJ Fraud Section in 2022 indicate the Department's increased focus on encouraging corporate compliance to prevent and detect misconduct.6 The new hires have experience that includes leading in-house compliance programs, developing data analytics tools, and evaluating corporate compliance programs. 3. Corporate Executive Certification Requirement. Corporate FCPA resolutions going forward are expected to require both the Chief Executive Officer and the Chief Compliance Officer to certify compliance programs at the end of corporate resolution periods.7 Every corporate DOJ resolution announced since May 2022—Glencore International A.G., GOL Linhas Aéreas Inteligentes S.A., ABB Ltd., and Honeywell UOP—has required these certifications.8 4. Continued International and Cross-Border Cooperation and Penalty Crediting With a Move Away from Simultaneous Resolutions. International cooperation and cross-border investigations have now become an established characteristic of corporate anti-corruption enforcement. In 2022, each of the five corporate resolutions announced by the DOJ's FCPA Unit involved the DOJ agreeing to credit penalties to resolutions with foreign authorities, including the first-ever coordination with authorities in South Africa.9 While the trend of international and cross-border cooperation and penalty crediting continued in 2022, the prior convention of international authorities announcing resolutions simultaneously no longer appears to be the given practice. Increasingly, different governments resolve cases on different timelines and, in certain cases, with credits for penalties in potential future actions by foreign authorities.10

B. 2022 Enforcement Trends and Priorities

1. Level of Enforcement Activity in 2022

In total, the number of FCPA enforcement actions in 2022 increased by one more than in 2021, but remained significantly lower than the number of actions in 2020 and other recent years. There have been 25 enforcement actions in 2022,11 as compared to 24 in 2021. The 25 actions include

eight corporate defendants, four of which were parties to parallel settlements with both the DOJ and SEC, and 13 individuals. The DOJ resolved five corporate cases and charged 13 individuals, eight corporate defendants, four of which were parties to parallel settlements with both the DOJ and SEC, and 13 individuals. The DOJ resolved five corporate cases and charged 13 individuals, and the SEC resolved seven corporate cases and did not bring any cases against individuals.

Unlike 2021, when all four of the FCPA resolutions against corporate defendants were against non-US companies,12 in 2022, three of the eight corporate defendants were US companies.13 Also, three of the 2022 resolutions involved recidivist corporate defendants—companies that had resolved FCPA-related matters previously—bringing to 21 the total number of companies that have settled more than one FCPA-related matter.14

Notwithstanding the DOJ's oft-repeated commitment to bringing individual prosecutions,15 the number of individual enforcement actions continued to decline in 2022, from 50 in 2019, to 31 in 2020, to 17 in 2021, to 13 in 2022. While this trend surely reflects the longtail of individual prosecutions that continue to follow corporate resolutions, it also appears in tension with the DOJ's stated goal of prioritizing individual prosecutions.

Footnotes

1 To calculate the total monetary penalties imposed in FCPA-related actions against companies, we counted the amounts set out in resolution papers that a settling party could be liable to pay to US enforcement agencies, even if those penalties were ultimately offset by payments to other entities (e.g., foreign authorities).

2 See Merrick B. Garland, Att'y Gen., DOJ, Remarks to the ABA Institute on White Collar Crime (Mar. 3, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-aba-institute-whitecollar-crime (stating DOJ's "first priority in corporate criminal cases is to prosecute the individuals who commit and profit from corporate malfeasance"); Lisa O. Monaco, Deputy Att'y Gen., DOJ, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group, at 2-3 (Sept. 15, 2022); Lisa O. Monaco, Deputy Att'y Gen., DOJ, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (Sept. 15, 2022), https://www.justice.gov/opa/speech/file/1535301/download (discussing the importance of cooperation related to "the government's ability to assess individual culpability"); see also, infra at Sections II.B.2.a. and Section III.D.1.

3 See, e.g., Lisa O. Monaco, Deputy Att'y Gen., DOJ, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (Sept. 15, 2022), https://www.justice.gov/opa/speech/file/1535301/download; See Nicole M. Argentieri, Acting Principal Deputy Assistant Att'y Gen., DOJ, Remarks at the 39th International Conference on the Foreign Corrupt Practices Act (Dec. 1, 2022), https://www.justice.gov/opa/speech/acting-principal-deputy-assistant-attorney-general-nicole-margentieri-delivers-remarks (stating that "a history of misconduct will not mean a guilty plea for a company that self-discloses, cooperates, and remediates unless other aggravating factors – aside from recidivism – are present.").

4 See Lisa O. Monaco, Deputy Att'y Gen., DOJ, Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group, at 5 (Sept. 15, 2022), https://www.justice.gov/opa/speech/file/1535301/download (stating "[n]ot all instances of prior misconduct ... are equally relevant or probative."); see also, infra at Section II.B.2.b.

5 See Lisa A. Monaco, Deputy Att'y Gen., DOJ, Remarks on Corporate Criminal Enforcement (Sept. 15, 2022), https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-delivers-remarks-corporatecriminal-enforcement (emphasizing that the DOJ will disfavor multiple, successive non-prosecution or deferred prosecution agreements with the same company and the same leadership).

6 See infra at Section II.D.1.

7 See Kenneth A. Polite Jr., Assistant Att'y Gen., DOJ, Remarks at the University of Texas Law School (Sept. 16, 2022), https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-delivers-remarksuniversity-texas-law-school (describing certification requirements in the Glencore A.G. and GOL Airlines resolutions and stating "[w]e will continue to use similar certifications in our corporate resolutions as appropriate for each case.").

8 Plea Agreement, United States v. Glencore Int'l AG, No. 22-CR-00297, Attach. H (S.D.N.Y. May 24, 2022); Deferred Prosecution Agreement, United States v. GOL Linhas Aéreas Inteligentes S.A., No. 22-CR-00325, Attach. F (D. Md. Sept. 16, 2022) ECF No. 12-6; Deferred Prosecution Agreement, United States v. ABB Ltd., No. 22-CR-00220, Attach. F (D. Va. Dec. 2, 2022) ECF No. 16-6; Deferred Prosecution Agreement, United States v. UOP, LLC, No. 22-CR-00624, Attach. F (S.D. Tex. Dec. 19, 2022) ECF No. 10.

9 U.S. Department of Justice Press Release No. 22-1383: Honeywell UOP to Pay Over $160 Million to Resolve Foreign Bribery Investigations in U.S. and Brazil (Dec. 19, 2022), https://www.justice.gov/opa/pr/honeywell-uoppay-over-160-million-resolve-foreign-bribery-investigations-us-and-brazil; U.S. Department of Justice Press Release No. 22-1296: ABB Agrees to Pay Over $315 Million to Resolve Coordinated Global Foreign Bribery Case (Dec. 2, 2022), https://www.justice.gov/opa/pr/abb-agrees-pay-over-315-million-resolve-coordinatedglobal-foreign-bribery-case; U.S. Department of Justice Press Release No. 22-978: GOL Linhas Aéreas Inteligentes S.A. Will Pay Over $41 Million in Resolution of Foreign Bribery Investigations in the United States and Brazil (Sept. 15, 2022), https://www.justice.gov/opa/pr/gol-linhas-reas-inteligentes-sa-will-pay-over-41- million-resolution-foreign-bribery; U.S. Department of Justice Press Release No. 22-554: Glencore Entered Guilty Pleas to Foreign Bribery and Market Manipulation Schemes (May 24, 2022), https://www.justice.gov/opa/pr/glencore-entered-guilty-pleas-foreign-bribery-and-market-manipulation-schemes; U.S. Department of Justice Press Release No. 22-401: Stericycle Agrees to Pay Over $84 Million in Coordinated Foreign Bribery Resolution (Apr. 20, 2022), https://www.justice.gov/opa/pr/stericycle-agrees-payover-84-million-coordinated-foreign-bribery-resolution.

10 For example, in the Glencore resolution, US authorities agreed to credit the company for payments made to authorities in Switzerland in the event that the company reaches a resolution with Swiss authorities within one year. US authorities similarly agreed to credit ABB Ltd. for payments the company made to German authorities pursuant to a pending resolution. See U.S. Department of Justice Press Release No. 22-554: Glencore Entered Guilty Pleas to Foreign Bribery and Market Manipulation Schemes (May 24, 2022), https://www.justice.gov/opa/pr/glencore-entered-guilty-pleas-foreign-bribery-and-market-manipulation-schemes; U.S. Department of Justice Press Release No. 22-1296, ABB Agrees to Pay Over $315 Million to Resolve Coordinated Global Foreign Bribery Case (Dec. 2, 2022), https://www.justice.gov/opa/pr/abb-agrees-pay-over315-million-resolve-coordinated-global-foreign-bribery-case.

11 We recognize that other commentators may present slightly different numbers depending on their methodology. To determine the number of corporate enforcement actions for the year, we counted enforcement actions brought by the SEC and DOJ separately (e.g., parallel settlements with the same entity by the SEC and DOJ count as two actions). However, actions brought by a single agency against related corporate entities (e.g., a parent and subsidiary) for the same core conduct count as only one action. Declinations and case closures are not included within this metric. To determine the number of enforcement actions against individuals for the year, we counted charges against individuals in the year they were filed, not the year they were announced (i.e., criminal charges unsealed at a later date are included in the count for the year they were originally filed). As a result, the numbers reported for previous years in this alert are updated and therefore may be different from prior reports. In addition to charges alleging violations of the substantive FCPA provisions, we also included non-FCPA charges for which the allegations relate to bribery schemes. These non-FCPA charges included, but are not limited to, conspiracy to violate the FCPA, money laundering, and conspiracy to commit money laundering.

12 See WilmerHale, Global Anti-Bribery Year-in-Review: 2021 Developments and Predictions for 2022, at 5 (Jan. 27, 2022), https://www.wilmerhale.com/en/insights/client-alerts/20220127-2021-global-anti-bribery-year-inreview.

13 Deferred Prosecution Agreement, United States v. Stericycle, Inc., No. 22-CR-20156 (S.D. Fla. Apr. 18, 2022) ECF No. 14; Order Instituting Cease-and-Desist Proc., In the Matter of Oracle Corp., Rel. No. 95913, File No. 3- 21158, Section IV (Sept. 27, 2022); Order Instituting Cease-and-Desist Proc., In the Matter of Honeywell Int'l Inc., Rel. No. 96529, File No. 3-21255 (Dec. 19, 2022).

14 See U.S. Department of Justice Press Release No. 22-1296: ABB Agrees to Pay Over $315 Million to Resolve Coordinated Global Foreign Bribery Case (Dec. 2, 2022), https://www.justice.gov/opa/pr/abb-agreespay-over-315-million-resolve-coordinated-global-foreign-bribery-case; U.S. Securities and Exchange Commission Press Release No. 2022-173: SEC Charges Oracle a Second Time for Violations of the Foreign Corrupt Practices Act (Sept. 27, 2022), https://www.sec.gov/news/press-release/2022-173; U.S. Securities and Exchange Commission Press Release No. 2022-98: SEC Charges Global Steel Pipe Manufacturer with Violating Foreign Corrupt Practices Act (June 2, 2022), https://www.sec.gov/news/press-release/2022-98; WilmerHale, Global Anti-Bribery Year-in-Review: 2021 Developments and Predictions for 2022, at 6 (Jan. 27, 2022), https://www.wilmerhale.com/en/insights/client-alerts/20220127-2021-global-anti-bribery-year-in-review (noting 18 as the total number of companies that have settled more than one FCPA-related matter).

15 See supra at Section I.A.; see infra at Section II.B.2.a. and Section III.D.1.

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