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Heightened FCPA Exposure for Executives
Government standards and expectations should be consistent and predictable. In enforcement of the Foreign Corrupt Practices Act (FCPA), however, the standards are continuously evolving, leaving corporate executives increasingly preoccupied with how prosecutors and regulators might view their activities. Some executives say this issue keeps them up at night.
For purposes of assigning criminal or civil liability, guilty knowledge ' the starting point for any criminal prosecution ' must be demonstrated by direct or circumstantial evidence. Yet, in the vigorous quest to deter global corruption, the Department of Justice (DOJ) and SEC appear to be loosening the knowledge requirement in order to hold corporate executives personally accountable for the actions of others in the corporate organization.
FCPA enforcement in 2009 was notable in several respects, including:
- the record-breaking Siemens settlement (over $1 billion in aggregate fines and penalties in global settlement with U.S. and German authorities;
- the DOJ's success in each of its three high-profile individual FCPA trials (Bourke, Jefferson, Greens); and
- the SEC's renewed commitment to criminal enforcement.
Taken together, these events clearly signal that that the current wave of aggressive enforcement has not crested and, according to recent public pronouncements from DOJ and SEC officials, is not expected to do so anytime soon.
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