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The FCPA and AML Statutes
Although criminal prosecutions under the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. ” 78dd-1, et seq. (FCPA) and the U.S. anti-money laundering (AML) laws have developed differently over the years, a review of recent enforcement actions reveals that prosecutions under these criminal schemes have started to converge. It is no secret that the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have placed increased emphasis on prosecutions for FCPA and AML violations. What is new, however, is that the DOJ has started to use the statutes in tandem to ensure the success of its criminal prosecutions. Some of the more recent cases over the past 12 to 18 months demonstrate that the dual use of these statutes has been successful in meeting this goal.
In proclaiming the DOJ's firm commitment to investigating and prosecuting foreign bribery, Assistant Attorney General Lanny A. Breuer declared, at the 24th National FCPA Conference, that “FCPA enforcement is stronger than it's ever been ' [and] we are in a new era of FCPA enforcement.” Consistent with that approach, 2010 witnessed an 85% increase in FCPA enforcement actions over 2009, which was itself a record year. The DOJ brought 48 enforcement actions in 2010, compared with 26 actions in 2009. See FINRA Annual Conference, FCPA Compliance, May 24, 2011. The same is true for AML enforcement. In 2010, the number of federal banking fines for AML violations in the United States, according to MoneyLaundering.com, rose by nearly fourfold, while the total dollar amount of the monetary penalties rose to over $660 million. Moreover, the DOJ's combined focus on FCPA and AML is exemplified by its 2010 Kleptocracy Asset Recovery Initiative, which targets the proceeds of foreign official corruption that have been laundered into or through the United States.
While the government has clearly stepped up enforcement of both the FCPA and AML regulations independently, notably, prosecutors appear to be using these provisions concurrently in an increasing number of enforcement actions. An understanding of how these two sets of criminal statutes work together can help a defense lawyer in approaching the handling of these cases. In analyzing the “why” behind this emerging trend, it is best to begin with some background of the FCPA and AML provisions.
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