As a government outsider, it’s impossible to know why there hasn’t yet been any DOJ or SEC corporate enforcement of the FCPA under the current administration. Here are three possible reasons:
A time to renegotiate. With every change of administration, there is a changing of the guard. Department heads and prosecutors leave, not necessarily en masse, but in numbers large enough to shake up any team. So is it possible companies in negotiations with the previous administration see an opportunity for wiggle room? Another shot at earning cooperation credit if the investigation didn’t necessarily start on the right foot?
A new agenda. The focus of criminal and civil enforcement evolves over time. A recent White House announcement articulated a whole-government initiative to fight corruption. Cooperation among disparate agencies takes time. As Thomas Jefferson said, “A republican government is slow to move, yet once in motion its momentum becomes irresistible.” Perhaps we see a reshaping of corporate FCPA enforcement as we have understood it up to this point, waiting backstage to explode onto the scene?
A Goldman Sachs-sized shadow. At the end of 2020, the bank paid $3.3 billion to settle FCPA offenses related to Malaysia’s 1MDB sovereign wealth fund. It’s by far the largest FCPA settlement to date — over a billion dollars more than the Airbus settlement earlier in 2020. With such a substantial monetary settlement, what’s the path forward for enforcement agencies to enter into mainstream media consciousness? In no way implying that the reward of recognition drives enforcement, but a splashy press event announced the Goldman Sachs settlement.
According to FCPA Tracker, there are at least 111 companies with disclosed and pending FCPA-related investigations.
As our editor at large said, the FCPA units at the DOJ and SEC are likely waiting for the dust to settle. But in the hypersonic modern world, time flies like an arrow.