Shearman & Sterling has released its bi-annual FCPA Digest — an invaluable compendium of every DOJ and SEC enforcement action catalogued, explained and analyzed, including parallel cases (private suits), ongoing investigations and all DOJ opinion procedure releases.
The Trends & Patterns report that’s part of the FCPA Digest (but can be downloaded separately) analyzes recent enforcement trends and patterns in the United States, United Kingdom and elsewhere, plus guidance on emerging best practices in FCPA and global anti-corruption compliance programs.
Shearman & Sterling partner Philip Urofsky is the editor-in-chief, and he and his team once again performed monumental work in creating this compendium and offering it for free to the compliance world.
I asked Mr. Urofsky about the trends he discusses in the Digest and new developments in the U.S. approach to FCPA enforcement. He said:
I think it is too early to declare a ‘trend’ of waning enforcement actions in the United States, although a third year of such numbers might get us there. Certainly, the actions brought in 2013 demonstrate both the aggressive side of U.S. enforcement — stretching the reach of the statute to capture foreign companies and holding parents responsible for subsidiaries’ actions — while also showing less aggressive use of jurisdictional theories and more nuanced use of monitors.
As interesting as these U.S. developments are, at least to me, is the legislative mandate for deferred prosecution agreements in the UK, albeit with some structural issues that may make them less attractive than the U.S. system.
The Trends & Patterns has a discsussion about 2013’s settlements, trials, reform efforts, the use of deferred and non-prosecution agreements, the government’s emphasis on cooperation and remediation, prosecutions of individuals, and the corporate fines assessed.
Among the points made:
- There were over $720 million penalties in 2013, and the average penalty ($80 million) and the adjusted average ($28 million) were both consistently up from previous years;
- There were a significant number of new cases against individuals;
- There was a surge in ‘hybrid’ monitors, with an independent monitor’s term of 18 months followed by 18 months of self-monitoring; and
- Aggressive theories of jurisdiction and parent-subsidiary liability continued.
The January 2014 edition of the FCPA Digest and Recent Trends and Patterns in FCPA Enforcement can be downloaded from Shearman & Sterling’s website here.
Julie DiMauro is the executive editor of FCPA Blog and can be reached here.