Antibribery enforcement may have gotten off to a slow start in 2013, but by now, the Department of Justice’s 12 enforcement actions this year have already surpassed its 2012 enforcement total, according to Gibson Dunn’s “2013 Mid-Year FCPA Update.”
“This year we’re likely to end back up in the prior levels of 20 to 25” Foreign Corrupt Practices Act (FCPA) cases, says Gibson Dunn senior associate John Chesley, referring to the DOJ’s FCPA enforcement levels in 2008, 2009, and 2011.
One explanation for a seeming lull in enforcement activity is that, as the Justice Department becomes a more active investigator in international antibribery cases, it is also filing many cases under seal. “There may be some lag time between when cases are filed and when they actually become public,” says Chesley, who is a co-author of the firm’s report. For its part, the Securities and Exchange Commission has so far brought four FCPA enforcement actions this year.
Here are some key findings from the latest report:
New FCPA partners: The French
The DOJ and the SEC netted $398 million in fines and disgorgement from the French oil company Total S.A.—and offered a tip of the hat to their law enforcement allies in France.
“Acting Assistant Attorney General Mythili Raman noted in DOJ's press release announcing the settlement that this case represents ‘the first coordinated action by French and U.S. law enforcement in a major foreign bribery case,’ ” Gibson Dunn points out, “and evidences that the two countries ‘are working more closely today than ever before to combat corporate corruption.’ ”
Going forward, Total will have a French compliance monitor, and the DOJ settlement also states that any further cooperation by Total with U.S. authorities would have to “be consistent with French data protection, labor, and blocking statutes,” the report says. That is an encouraging stipulation for multinationals that have to comply with laws in two legal regimes that differ on data privacy issues, according to Chesley. “It recognizes that companies are placed in this very difficult position,” he says.
