Despite Rhetoric On Individual Accountability, Recent FCPA Enforcement Has Targeted Entities

Reviewing the enforcement record, however, one sees that the volume of FCPA enforcement activity with respect to individuals has steadily declined in the last three years, and in the case of the SEC, disappeared entirely. Looking beyond the numerical decline uncovers some further patterns. Of the individuals criminally charged in connection with foreign bribery schemes in recent years, most were charged with criminal offenses other than substantive FCPA violations. The enforcement record also shows that when DOJ has brought FCPA-related charges against individuals, they are rarely the executives of the companies DOJ has pursued in its notable corporate FCPA prosecutions, but rather are foreign officials or individuals associated with small or privately held companies.

In regard to SEC enforcement, instead of focusing on individuals, recent actions have targeted entities, particularly foreign issuers, and pursued violations of the accounting provisions of the FCPA rather than substantive anti-bribery violations. Although time will tell whether the government's recent FCPA enforcement record reflects the lingering impact of COVID on investigative efforts or a longer term trend, these recent patterns are worthy of note for white-collar practitioners and company counsel addressing potential FCPA issues.