Despite the significant obstacles presented by the global pandemic, U.S. enforcement agencies remained "open for business" in 2020, 1 with the DOJ and the SEC assessing a record-breaking combined total of nearly $2.8 billion in corporate penalties in FCPA settlements, and foreign authorities assessing an additional $2.9 billion in penalties in related cases. The number of corporate FCPA enforcement actions resolved by the DOJ and the SEC remained comparable to prior years, and clearly signaled the U.S. authorities' enduring commitment to vigorous enforcement of the FCPA and to multilateral cooperation.
Although both the DOJ and the SEC continued to emphasize individual accountability, in a departure from recent years, both authorities announced considerably fewer individual prosecutions, returning to levels seen in 2015. The decline may reflect the impact of the pandemic on the authorities' ability to bring new criminal charges or initiate civil actions, which require a grand jury and open courthouses.
The DOJ and the SEC also published an updated edition of the 2012 FCPA Resource Guide and announced several policy changes intended to advance the authorities' stated desire to increase transparency and consistency in the way that the FCPA is enforced. The policy revisions seek to lessen the burden and costs of corporate investigations, and to avoid outcomes that disproportionately penalize innocent employees, stakeholders and customers. The policy updates, in our view, reflect the enforcement authorities' maturing and nuanced understanding of companies' efforts to comply with the FCPA, particularly in light of the exceptional obstacles posed by the global pandemic.
Over the past decade, FCPA enforcement has proven remarkably steady year after year, regardless of the administration in power. Even the Trump Administration's DOJ and SEC have imposed record penalties under the FCPA, despite early concerns about Mr. Trump's reported views about the statute. It would be surprising if enforcement did not accelerate under the Biden Administration.
Our reflections on the year's most significant developments in anti-corruption and FCPA enforcement and policy are below.
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1. Brian C. Rabbitt, Acting Asst. Att'y Gen., U.S. Dep't of Justice, Remarks at the ACI 37th Annual Conference on the FCPA (Dec. 3, 2020), https://www.justice.gov/opa/speech/remarks-acting-assistant-attorney-general-brian-c-rabbitt-aci-37thannual-conference-fcpa.
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