Non-U.S. companies have long dominated the FCPA Blog Top Ten list, and currently occupy nine of ten places. That means the DOJ and SEC (no matter who’s in the White House) apply the FCPA unfairly, using it to “punish” mainly big, well-known foreign businesses, right?
Well, actual enforcement numbers tell a different story.
Since the FCPA’s enactment in December 1977, there have been 251 corporate enforcement actions.
Of those 251 FCPA cases, 168 involved companies headquartered in the United States. That means 67 percent of all FCPA corporate enforcement actions have been against U.S. companies.
What about the last ten years? Surely foreign companies have been specifically targeted.
From 2011 until now, there have been 142 corporate FCPA enforcement actions.
Of those, 76 involved U.S.-based companies. That’s 53 percent of all FCPA corporate enforcement actions during the prior decade.
By comparison, since 1977 only 13 UK-based companies have been prosecuted for FCPA offenses, 11 German companies, six from France, and four from Italy.
So, while it may seem like foreign companies, especially those from Europe, have been unfairly targeted, the numbers don’t support that.
Still, there’s the question about the Top Ten list. Why do non-U.S. companies always dominate it?
As our Editor-At-Large recently said, one reason is the “culture” gap. Outside the United States, many executives and lawyers are still reluctant to cooperate with DOJ investigations, at least initially. And their lack of initial cooperation has contributed to so many foreign companies ending up on the Top Ten list.
In turn, that has likely distorted perceptions (especially outside the United States) about what companies are the usual targets of FCPA enforcement.
Research for this post was conducted on FCPA Blog+.