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Provide your assessment of how effective this piece of legislation has been over the years. Why? Should any changes to the Act be introduced? Why?

FOREIGN CORRUPT PRACTICES ACT STATISTICS, THEORIES, POLICIES, AND BEYOND

MIKE KOEHLER1

ABSTRACT

The Foreign Corrupt Practices Act (FCPA) is not a new law; it was enacted in 1977. Nevertheless, 2015 was a commemorative year, as it marked the fifth anniversary of the Department of Justice declaring a “new era” of FCPA enforcement, the fifth anniversary of Congressional FCPA reform hearings, and the third anniversary of the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) issuing FCPA guidance.2 In addition to these mileposts, 2015 was also a notable year in several other respects as highlighted in this article.

1 Mike Koehler is an Associate Professor, Southern Illinois University School of Law. Professor Koehler is the founder and editor of the website FCPA Professor (www.fcpaprofessor) and author of the book THE FOREIGN CORRUPT PRACTICES ACT IN A NEW ERA (Edward Elgar Publishers, 2014). Professor Koehler’s FCPA expertise and views are informed by a decade of legal practice experience at a leading international law firm. The issues covered in this article, current as of January 1, 2016, assume the reader has sufficient knowledge and understanding of the FCPA, as well as FCPA enforcement, including the role of the Department of Justice and Securities and Exchange Commission in enforcing the FCPA and the resolution vehicles typically used to resolve FCPA scrutiny. Interested readers can learn more about these topics and others by reading the author’s FCPA Professor website (http://www.fcpaprofessor.com), specifically the FCPA 101 page of the site (http://www.fcpaprofessor.com/fcpa-101). This article is part of a continuing series of yearly analysis by the author of FCPA enforcement data and related issues. For 2014, see Mike Koehler, A Snapshot of the Foreign Corrupt Practices Act, 14 SANTA CLARA J. INT’L L. 143 (2016) [hereinafter Koehler, A Snapshot]. For 2013, see Mike Koehler, A Foreign Corrupt Practices Act Narrative, 22 MICH. ST. INT’L L. REV. 961 (2014) [hereinafter Koehler, Narrative]. For 2012, see Mike Koehler, An Examination of Foreign Corrupt Practices Act Issues, 12 RICH. J. GLOBAL L. & BUS. 317 (2013). For 2011, see Mike Koehler, The Foreign Corrupt Practices Act Under the Microscope, 15 U. PENN. J. BUS. L. 1 (2012). For 2010, see Mike Koehler, Big, Bold, and Bizarre: The Foreign Corrupt Practices Act Enters a New Era, 43 U. TOL. L. REV. 99 (2011). For 2009, see Mike Koehler, The Foreign Corrupt Practices Act in the Ultimate Year of its Decade of Resurgence, 43 IND. L. REV. 389 (2010).

2 Interested readers can learn more about these developments at the following sources: A Resource Guide to the U.S. Foreign Corrupt Practices Act, DOJ & ENFORCEMENT DIV. SEC (Nov. 14, 2012), http://www.justice.gov/sites/default/files/criminal- fraud/legacy/2015/01/16/guide.pdf; Examining Enforcement of the Foreign Corrupt Practices Act: Hearing on S. 111-1005 Before the Subcomm. on Crime and Drugs, Comm. on the Judiciary, 111th Cong. (2010); Assistant Attorney General Lanny A. Breuer Speaks at the 24th National Conference on the Foreign Corrupt Practices Act, DOJ (Nov. 16, 2010), http://www.justice.gov/opa/speech/assistant-attorney-general-lanny-breuer-speaks-24th- national-conference-foreign-corrupt.

1Published by EngagedScholarship@CSU, 2017

158 CLEVELAND STATE LAW REVIEW [Vol. 65:157

This article, part of an annual series, paints a picture of FCPA and related developments from 2015. Specifically, this article dissects FCPA enforcement in a number of ways and highlights meaningful statistics from 2015 as well as historical comparisons. Thereafter, this article discusses a range of noteworthy issues from 2015 such as: expansive and evolving FCPA enforcement theories, judicial scrutiny of FCPA and related enforcement theories, policy pronouncements and developments relevant to FCPA issues, and developments beyond the FCPA that nevertheless touch upon FCPA issues or are otherwise relevant to a similar space.

CONTENTS

I. INTRODUCTION …………………………………………………………………………… 158 II. 2015 FCPA ENFORCEMENT STATISTICS AND HISTORICAL COMPARISONS .. 158

A. DOJ Corporate FCPA Enforcement ………………………………………. 158 B. SEC Corporate FCPA Enforcement ………………………………………. 162 C. Aggregate Corporate FCPA Enforcement ………………………………. 165 D. Individual FCPA Enforcement ……………………………………………… 168

III. NOTEWORTHY ISSUES FROM 2015 …………………………………………………. 171 A. Expansive and Evolving FCPA Enforcement Theories……………… 171 B. Judicial Scrutiny of FCPA and Related Enforcement Theories ….. 180 C. Policy Pronouncements and Developments Relevant to FCPA Issues.. 185 D. Developments Beyond the FCPA …………………………………………… 201

1. FCPA-Related Civil Litigation ……………………………………… 201 2. Historic Firsts in the U.K. …………………………………………….. 204

IV. CONCLUSION………………………………………………………………………………. 210 I. INTRODUCTION

This article paints a picture of Foreign Corrupt Practices Act (FCPA) and related developments from 2015. Specifically, Part II of this article dissects FCPA enforcement in a number of ways and highlights statistics from 2015 as well as historical comparisons. Thereafter, Part III of this article discusses a range of noteworthy issues from 2015 such as: expansive and evolving FCPA enforcement theories, judicial scrutiny of FCPA and related enforcement theories, policy pronouncements and developments relevant to FCPA issues, and developments beyond the FCPA that nevertheless touch upon FCPA issues or are otherwise relevant to a similar space.

In addressing these topics, this article will benefit anyone seeking an informed base of FCPA knowledge and related legal and policy issues in the FCPA’s modern era.

II. 2015 FCPA ENFORCEMENT STATISTICS AND HISTORICAL COMPARISONS

Part II of this article dissects FCPA enforcement and highlights meaningful statistics from 2015 as well as historical comparisons in the following ways: Department of Justice (DOJ) corporate FCPA enforcement, Securities and Exchange Commission (SEC) corporate FCPA enforcement, aggregate corporate FCPA enforcement, and individual FCPA enforcement.

A. DOJ Corporate FCPA Enforcement

As demonstrated in Table I, in two corporate FCPA enforcement actions3 in 2015 the DOJ collected approximately $24.2 million in settlement amounts. 3 Corporate FCPA enforcement statistics in this article use the “core” approach. The core approach focuses on unique instances of corporate conduct regardless of whether the conduct at issue

2http://engagedscholarship.csuohio.edu/clevstlrev/vol65/iss2/6

2017] FOREIGN CORRUPT PRACTICES ACT 159

Table I—2015 DOJ

SOLUTION

  • Statistics: Since the enactment of the FCPA in 1977, the U.S. Department of Justice (DOJ) has brought over 400 FCPA enforcement actions, resulting in more than $5 billion in penalties. In recent years, FCPA enforcement has increased, with the DOJ and Securities and Exchange Commission (SEC) bringing a record 57 FCPA enforcement actions in 2019.Theories: The FCPA is based on the theory that corruption harms both the host country and the U.S. government’s interests. Corruption in host countries can undermine economic development, increase poverty, and reduce public trust in government. Corruption can also harm U.S. interests by distorting competition, reducing foreign investment, and creating an uneven playing field for U.S. companies.

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