by Kimberly Parker, Jay Holtmeier, Erin Sloane, Christopher Cestaro, Sandra Redivo, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae

Although publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity remains lower than the levels reached a few years ago, 2023 saw a modest increase in the overall number of FCPA enforcement actions (26 in 2022 vs. 27 in 2023).  This was seen especially in the number of corporate resolutions (12 in 2022 vs. 15 in 2023).  The combined total of monetary penalties decreased, from $1.56 billion in 2022 to $776 million in 2023.  Nonetheless, senior officials at the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) again signaled, through policy changes and public announcements, that anti-corruption enforcement is a priority and that there will be significant and growing enforcement efforts going forward.  Below are the key takeaways regarding FCPA enforcement in 2023 and trends to keep in mind as we look ahead to 2024.

Key Take-Aways Regarding FCPA Enforcement in 2023 and Predictions for 2024

Level of Enforcement Activity in 2023 in Numbers.  As shown in the graph below, there were 27 enforcement actions in 2023, which include 15 corporate defendants, two of which were parties to parallel settlements with both the DOJ and the SEC, and 12 individuals,[1] all charged by the DOJ.  Key take-aways regarding the number of cases include:

• The total of FCPA-related resolution payments by companies in 2023 was approximately $776 million,[2] which was substantially lower compared to the approximately $1.56 billion imposed in 2022, but greater than the total resolution amounts paid in 2021 of approximately $459 million.
• The SEC has continued to prioritize investigating and resolving corporate FCPA matters, again announcing more corporate settlements than the DOJ (nine for the SEC vs. six for the DOJ). However, the SEC has not brought any FCPA charges against individuals during the past two years.
• There has also been a steady increase in the number of actions against U.S.-based companies in recent years, from none in 2021, to three in 2022, to five in 2023.[3]
• One of the 2023 resolutions involved a recidivist corporate defendant—a company that had resolved FCPA-related matters previously[4]—and another involved a breach of an existing corporate resolution, bringing the total number of companies that have settled more than one FCPA-related matter to 23.[5]
• The number of public individual FCPA enforcement actions continued to decline in 2023 for the fourth year in a row, from 50 in 2019, to 31 (2020), 17 (2021), 13 (2022), and to 12 in 2023.

DOJ and SEC Enforcement Actions from 2010-2023

Enforcement Trends.  Below are key FCPA enforcement trends in 2023:

• Continued Focus on High-Risk Industries. In 2023, the DOJ and SEC continued to bring cases against companies doing business in high-risk industries, such as the energy,[6] healthcare,[7] financial services,[8] and gaming and entertainment sectors.[9]  These industries continue to attract FCPA enforcement attention due to their broad geographic reach, reliance on third parties, and heavy government regulation.
• Continued International and Cross-Border Cooperation. The DOJ and SEC continued to build partnerships and cooperation with their international counterparts in 2023.  Notably, in November 2023, DOJ announced the International Corporate Anti-Bribery Initiative (ICAB).[10] The initiative is intended to strengthen the DOJ’s existing international partnerships and enhance its ability to identify and prosecute foreign bribery offenses.  ​
• Enforcement Focused on Conduct in Latin America. As in prior years, many of the enforcement actions in 2023 involved conduct that occurred in Latin America.[11] This geographic focus is expected to continue, with Trafigura Group announcing in December that the DOJ is investigating the company’s business dealings in Brazil, among other countries.[12]
• Continued Use of Money Laundering Charges. Money laundering charges have increasingly become an important tool in the U.S. government’s fight against international corruption.  In line with this two-pronged strategy, the DOJ brought money laundering charges along with FCPA bribery charges against at least six individuals in 2023.  In addition, in bribery cases involving foreign officials, or bribe payers who do not meet the FCPA’s jurisdictional touchpoints, the DOJ has continued to rely heavily on money laundering charges as a means of pursuing enforcement actions against these individuals.  As further discussed below, the Foreign Extortion Prevention Act (FEPA), enacted in December 2023, will provide the DOJ with additional tools to prosecute corruption cases against foreign officials.[13]
• Decreased Imposition of Monitorships. Contrasting 2022, when the U.S. government imposed monitorships in two out of five corporate resolutions, neither the DOJ nor the SEC imposed any new monitorships relating to FCPA violations in 2023.  

Key Policy Updates.  In 2023 and early 2024, U.S. authorities continued to provide further detail and clarification regarding their approach to corporate enforcement.  Recent key guidance indicates:

• Revisions to Corporate Criminal Enforcement Policies. In January 2023, the DOJ announced revisions to its Corporate Enforcement Policy (CEP) to provide that companies that voluntarily self-disclose misconduct will be eligible for declinations, even where aggravating circumstances are present.[14] There will now be a high bar for obtaining a declination with aggravating circumstances given that disclosure must be “immediate,” the company’s compliance program must have been effective at the time of the misconduct and at the time of the disclosure, and cooperation and remediation must be “extraordinary.”  The revised CEP also allows for increased potential credit for voluntary self-disclosures that do not receive a declination and increased potential credit for extraordinary cooperation and remediation without voluntarily self-disclosure.
• Voluntary Self-Disclosure Policy for U.S. Attorneys’ Offices Nationwide. In February 2023, U.S. Attorney for the Southern District of New York, Damian Williams, and U.S. Attorney for the Eastern District of New York, Breon Peace, announced the implementation of the new U.S. Attorneys’ Offices (USAOs) Voluntary Self-Disclosure Policy which applies nationwide with respect to criminal enforcement matters.[15] Under the new policy, companies that voluntarily self-disclose misconduct, fully cooperate, and timely and appropriately remediate, absent aggravating factors, will not receive a guilty plea.  In these circumstances, the USAOs may also choose not to impose a criminal penalty and in any event will not impose a criminal penalty that is greater than 50% below the low end of the U.S. Sentencing Guidelines fine range.[16]
• M&A Safe Harbor Policy. In October 2023, the DOJ announced a safe harbor policy for mergers and acquisitions that will shield acquiring companies from criminal prosecution for misconduct that they uncover at a target company and both (1) report within six months of the acquisition; and (2) fully remediate within 12 months of the acquisition.[17] However, the DOJ has left the approach to the target company a bit uncertain and has stated that the target company can also “potentially” qualify for a declination in the absence of aggravating circumstances.​
• Pilot Program on Compensation Incentives and Clawbacks. A new three-year pilot program, introduced in March 2023 by the DOJ, will require companies, as part of every corporate resolution, to develop compliance-promoting criteria within their compensation and bonus systems.[18] The program will also provide fine reductions to companies that seek to claw back compensation from wrongdoers.  This is in-line with DOJ’s focus on promoting compliance and individual accountability, even in corporate prosecutions.
• Updates to Monitor Selection Policy. In March 2023, the DOJ released a revised memorandum providing four clarifying principles to guide monitorships: (1) there is no default presumption for or against the use of monitors; (2) monitor requirements apply to monitor teams, in addition to the titular monitor; (3) monitor selection must adhere to DEI principles; and (4) the cooling-off period for monitors is extended from two years to three years.[19] 

Foreign Extortion Prevention Act.  In December 2023, Congress passed FEPA as part of the National Defense Authorization Act.[20] FEPA amends the federal domestic bribery statute to criminalize the “demand side” of foreign bribery, making it illegal for foreign officials to demand or accept bribes in exchange for official acts or improper business advantages.  Violations of FEPA may result in fines of up to $250,000 or three times the bribe’s monetary equivalent, along with potential imprisonment for up to 15 years.[21]

New Senior-Level Appointments in the DOJ Fraud Section.  During 2023, David Fuhr was promoted to Chief of the DOJ’s FCPA Unit, following prior-Chief David Last’s departure.[22] Keith Edelman was appointed by the DOJ as the new Principal Assistant Chief of the FCPA Unit, taking over David Fuhr’s prior role.[23]

Predictions for 2024.  Anti-corruption enforcement is expected to remain a high priority for U.S. enforcement agencies in 2024.  In fact, the DOJ and SEC had already announced parallel enforcement actions in January of 2024[24] and, on March 1, 2024, the DOJ entered into a $661 million guilty plea with a commodities trading company for conspiracy to violate the anti-bribery provisions of the FCPA.[25] The DOJ will likely continue to highlight examples of companies benefitting from the DOJ’s recent policy incentives on voluntary disclosure, cooperation, compensation clawbacks, and the M&A safe harbor policy.  Additionally, under the FEPA, the DOJ will have an expanded ability to prosecute foreign officials, which could lead to additional investigation exposure for U.S. issuers and other FCPA-covered companies.  The DOJ’s focus on cross-border cooperation, and the success of existing collaborations with global enforcement authorities, should continue in 2024, including in Latin America and Asia.  Lastly, as law enforcement grows more sophisticated with respect to emerging technology used to evade sanctions and detection of wrongdoing, and as alternative currencies grow in acceptance, so too should prosecutions that feature payments made through such mechanisms.

For more information on FCPA enforcement trends and activities, please refer to WilmerHale’s Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024 and other publications regarding the FCPA on the firm’s website.

Footnotes

[1] To determine the number of corporate enforcement actions for the year, we counted enforcement actions brought by the SEC and the DOJ separately (e.g., parallel settlements with the same entity by the SEC and the DOJ count as two actions).  However, actions brought by a single agency against related corporate entities (e.g., a parent and subsidiary) for the same core conduct count as only one action.  Declinations and case closures are not included within this metric.  To determine the number of enforcement actions against individuals for the year, we counted charges against individuals in the year they were filed, not the year they were announced (i.e., criminal charges unsealed at a later date are included in the count for the year they were originally filed).

[2] To calculate the total resolution amounts imposed in FCPA-related actions against companies, we counted the amounts set out in resolution papers that a settling party could be liable to pay to U.S. enforcement agencies, even if those penalties were ultimately offset by payments to foreign authorities.

[3] U.S. Department of Justice Press Release No. 23-1424: Commodities Trading Company Agrees to Pay Over $98M to Resolve Foreign Bribery Case (Dec. 14, 2023), https://www.justice.gov/opa/pr/commodities-trading-company-agrees-pay-over-98m-resolve-foreign-bribery-case; U.S. Department of Justice Press Release No. 23-1072: Albemarle to Pay Over $218M to Resolve Foreign Corrupt Practices Act Investigation (Sept. 29, 2023), https://www.justice.gov/opa/pr/albemarle-pay-over-218m-resolve-foreign-corrupt-practices-act-investigation; U.S. Securities and Exchange Commission Press Release No. 2023-209: Albemarle Corp. to Pay SEC More Than $103 Million to Settle FCPA Violations (Sept. 29, 2023), https://www.sec.gov/news/press-release/2023-209; U.S. Securities and Exchange Commission Press Release No. 2023-206: SEC Charges Clear Channel Outdoor with FCPA Violations Relating to China Subsidiary (Sept. 28, 2023), https://www.sec.gov/news/press-release/2023-206; U.S. Securities and Exchange Commission Press Release No. 2023-160: SEC Charges 3M with Foreign Corrupt Practices Act Violations Relating to China Subsidiary (Aug. 25, 2023), https://www.sec.gov/news/press-release/2023-160; U.S. Securities and Exchange Commission, Administrative Proceeding File No. 3-21470: SEC Charges Gartner, Inc. with FCPA Violations in South Africa (May 26, 2023), https://www.sec.gov/enforce/34-97609-s.

[4] U.S. Securities and Exchange Commission Press Release No. 2023-92: Dutch Medical Supplier Philips to Pay More Than $62 Million to Settle FCPA Charges (May 11, 2023), https://www.sec.gov/news/press-release/2023-92.

[5] U.S. Department of Justice Press Release No. 23-239: Ericsson to Plead Guilty and Pay Over $206M Following Breach of 2019 FCPA Deferred Prosecution Agreement (Mar. 2, 2023), https://www.justice.gov/opa/pr/ericsson-plead-guilty-and-pay-over-206m-following-breach-2019-fcpa-deferred-prosecution.

[6] U.S. Department of Justice Press Release No. 23-107: Albemarle to Pay Over $218M to Resolve Foreign Corrupt Practices Act Investigation (Sept. 29, 2023), https://www.justice.gov/opa/pr/albemarle-pay-over-218m-resolve-foreign-corrupt-practices-act-investigation; Order Instituting Cease-and-Desist Proceedings, In the Matter of Frank’s International N.V., Rel. No. 97381, File No. 3-21397 (Apr. 26, 2023), https://www.sec.gov/files/litigation/admin/2023/34-97381.pdf; Order Instituting Cease-and-Desist Proceedings, In the Matter of Rio Tinto plc, Rel. No. 97049, File No. 3-21335, ¶ 1 (Mar. 6, 2023), https://www.sec.gov/files/litigation/admin/2023/34-97049.pdf; U.S. Securities and Exchange Commission Press Release No. 2023-46: SEC Charges Rio Tinto plc with Bribery Controls Failures (Mar. 6, 2023), https://www.sec.gov/news/press-release/2023-46; Letter from Glenn S. Leon, DOJ, and Troy Rivetti, Western District of Pennsylvania, Re: Corsa Coal Corporation (Mar. 8, 2023), https://www.justice.gov/media/1280101/dl?inline.

[7] Order Instituting Cease-and-Desist Proceedings, In the Matter of Koninklijke Philips N.V., Rel. No. 97479, File No. 3-21411 (May 11, 2023), https://www.sec.gov/files/litigation/admin/2023/34-97479.pdf.

[8] U.S. Department of Justice Press Release No. 23-871: Corficolombiana to Pay $80M to Resolve Foreign Bribery Investigations (Aug. 10, 2023), https://www.justice.gov/opa/pr/corficolombiana-pay-80m-resolve-foreign-bribery-investigations; U.S. Department of Justice Press Release No. 23-1319: British Reinsurance Brokers Resolve Bribery Investigations (Nov. 20, 2023), https://www.justice.gov/opa/pr/british-reinsurance-brokers-resolve-bribery-investigations.

[9] U.S. Securities and Exchange Commission Press Release No. 3-21330: SEC Charges PokerStars Parent Company with FCPA Violations (Mar. 6, 2023), https://www.sec.gov/enforce/34-97044-s.

[10] Nicole M. Argentieri, Acting Assistant Att’y Gen., DOJ, Keynote Address at the 40th International Conference on the Foreign Corrupt Practices Act (Nov. 29, 2023), https://www.justice.gov/opa/speech/acting-assistant-attorney-general-nicole-m-argentieri-delivers-keynote-address-40th.

[11] See (1) the parallel DOJ and SEC resolutions with Corficolombiana connected to a government-funded highway infrastructure project in Colombia, U.S. Department of Justice Press Release No. 23-871: Corficolombiana to Pay $80M to Resolve Foreign Bribery Investigations (Aug. 10, 2023), https://www.justice.gov/opa/pr/corficolombiana-pay-80m-resolve-foreign-bribery-investigations; (2) the DOJ’s plea agreement with Orlando Alfonso Contreras Saab related to a conspiracy to bribe Venezuelan officials to receive contracts for food import, Complaint, United States vs. Orlando Alfonso Contreras Saab, No. 23-CR-20364 (S.D. Fla. Sept. 11, 2023); (3) the deferred prosecution agreement (DPA) with Freepoint Commodities LLC (Freepoint) regarding its scheme to pay bribes to Brazilian government officials to secure business with Petrobras, U.S. Department of Justice Press Release No. 23-1424: Commodities Trading Company Agrees to Pay Over $98M to Resolve Foreign Bribery Case (Dec. 14, 2023), https://www.justice.gov/opa/pr/commodities-trading-company-agrees-pay-over-98m-resolve-foreign-bribery-case; and (4) the deferred prosecution agreements with Tysers and H.W. Wood regarding their scheme to pay bribes to Ecuadorian government officials in state-owned insurance companies, U.S. Department of Justice Press Release No. 23-1319: British Reinsurance Brokers Resolve Bribery Investigations (Nov. 20, 2023), https://www.justice.gov/opa/pr/british-reinsurance-brokers-resolve-bribery-investigations.

[12] Julia Payne, Trafigura sets aside $127 mln provision for Brazil, US DOJ fine, Reuters (Dec. 6, 2023), https://www.reuters.com/markets/commodities/trafigura-sets-aside-127-mln-provision-brazil-us-doj-fine-2023-12-06.

[13] See WilmerHale, Congress Enacts the Foreign Extortion Prevention Act Targeting Foreign Officials’ Conduct, Section I.A (Dec. 21, 2023), https://www.wilmerhale.com/insights/client-alerts/20231221-congress-enacts-the-foreign-extortion-prevention-act-targeting-foreign-officials-conduct.

[14] Kenneth A. Polite, Jr., Assistant Att’y Gen., Criminal Division, DOJ, Remarks on Revisions to the Criminal Division’s Corporate Enforcement Policy (Jan. 17, 2023), https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-remarks-georgetown-university-law.

[15] U.S. Department of Justice Press Release No. 23-068: Damian Williams and Breon Peace Announce New Voluntary Self-Disclosure Policy for United States Attorney’s Offices (Feb. 22, 2023), https://www.justice.gov/usao-sdny/pr/damian-williams-and-breon-peace-announce-new-voluntary-self-disclosure-policy-united; WilmerHale, Department of Justice Issues Voluntary Self-Disclosure Policy for Corporate Criminal Enforcement Applicable to U.S. Attorneys’ Offices Nationwide (Feb. 24, 2023), https://www.wilmerhale.com/insights/client-alerts/20230224-department-of-justice-issues-voluntary-self-disclosure-policy-for-corporate-criminal-enforcement-applicable-to-us-attorneys-offices-nationwide.

[16] U.S. Department of Justice, United States Attorneys’ Offices Voluntary Self-Disclosure Policy (Feb. 22, 2023), https://www.justice.gov/usao-sdny/press-release/file/1569411/download.

[17] Deputy Attorney General Lisa O. Monaco Announces New Safe Harbor Policy for Voluntary Self-Disclosures Made in Connection with Mergers and Acquisitions (Oct. 4, 2023), https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-announces-new-safe-harbor-policy-voluntary-self/; WilmerHale, DOJ Announces New Mergers & Acquisitions Safe Harbor Policy (Oct. 5, 2023), https://www.wilmerhale.com/en/insights/client-alerts/20231005-doj-announces-new-mergers-acquisitions-safe-harbor-policy.

[18] U.S. Department of Justice, The Criminal Division’s Pilot Program Regarding Compensation Incentives and Clawbacks (Mar. 3, 2023), https://www.justice.gov/file/1571416/download.

[19] Kenneth A. Polite, Jr., Assistant Att’y Gen., Criminal Division, DOJ, Keynote at American Bar Association National Institute on White Collar Crime (Mar. 3, 2023), https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-keynote-aba-s-38th-annual-national.

[20] WilmerHale, Congress Enacts the Foreign Extortion Prevention Act Targeting Foreign Officials’ Conduct (Dec. 21, 2023), https://www.wilmerhale.com/insights/client-alerts/20231221-congress-enacts-the-foreign-extortion-prevention-act-targeting-foreign-officials-conduct.

[21] National Defense Authorization Act for Fiscal Year 2024, H.R. 2670, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/house-bill/2670/text.

[22] Max Fillion and Anna Bianca Roach, David Fuhr named acting chief of FCPA Unit, Global Investigations Rev. (May 8, 2023), https://globalinvestigationsreview.com/just-anti-corruption/article/david-fuhr-named-acting-chief-of-fcpa-unit.

[23] Anna Bianca Roach, Keith Edelman named acting second-in-command of FCPA Unit, Global Investigations Rev. (June 2, 2023), https://globalinvestigationsreview.com/just-anti-corruption/article/keith-edelman-named-acting-second-in-command-of-fcpa-unit.

[24] Order Instituting Cease-and-Desist Proceedings, In the Matter of SAP SE, Rel. No. 99308, File No. 3-21824 (Jan. 10, 2024), https://www.sec.gov/files/litigation/admin/2024/34-99308.pdf; U.S. Securities and Exchange Commission Press Release No. 2024-4: SEC Charges Global Software Company SAP for FCPA Violations (Jan. 10, 2024), https://www.sec.gov/news/press-release/2024-4; U.S. Department of Justice Press Release No. 23-107: SAP to Pay Over $220M to Resolve Foreign Bribery Investigations (Jan. 10, 2024), https://www.justice.gov/opa/pr/albemarle-pay-over-218m-resolve-foreign-corrupt-practices-act-investigation; Deferred Prosecution Agreement, United States of America v. SAP SE, No. 23-CR-202 (E.D. Va. Jan. 10, 2024), https://www.justice.gov/opa/media/1332661/dl?inline.

[25] U.S. Department of Justice Press Release No. 24-237: Commodities Trading Company Will Pay Over $661M to Resolve Foreign Bribery Case (Mar. 1, 2024), https://www.justice.gov/opa/pr/commodities-trading-company-will-pay-over-661m-resolve-foreign-bribery-case; Plea Agreement to Judgment, United States of America v. Gunvor S.A., No. 24-CR-00085 (E.D.N.Y. Mar. 1, 2024), https://www.justice.gov/opa/media/1341011/dl?inline.   

Kimberly Parker, Jay Holtmeier, Erin Sloane, and Christopher Cestaro are Partners, Sandra Redivo is a Senior Associate, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae are Counsel at Wilmer Cutler Pickering Hale and Dorr LLP. Molly Collett and Adam Gerard also contributed to the article. They are Associates at Wilmer Cutler Pickering Hale and Dorr LLP.

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