Philip Urofsky and Danforth Newcomb of Shearman & Sterling LLP have released their latest update on the Recent Trends and Patterns in FCPA Enforcement (.pdf).
The Foreign Corrupt Practices Act has been front page news quite a bit lately with the enormous settlement of Siemens. The first to break through $1 billion. The Hallibuton/KBR settlement followed up with enormous numbers, just not quite as big as Siemens. There has been rumors floating around that there are several other cases out there with substantial fines as a result of FCPA prosecutions. Of course these numbers have been swallowed up by Madoff, Stanford and al of the gyrations in the market.
What do Mr. Urofsky and Mr. Newcomb have to say?:
The past year has seen the announcement of a number of FCPA enforcement actions with unprecedented fines and penalties. However, while such major cases as Siemens and Halliburton/KBR have obviously dominated the news, it is hard to say whether they represent a trend toward large-scale high-penalty FCPA prosecutions although there are likely several cases with similarly substantial fines to come. More important than the size of the penalty are the multi-year trends of increasing numbers of enforcement investigations and enforcement actions against both corporations and individuals, which have been accompanied by expansive assertions of jurisdiction by the U.S. enforcement authorities and a rapidly growing body of interpretative guidance, both from the courts and the enforcement agencies themselves. The increased risk of investigation or enforcement action has resulted in increased sensitivity to FCPA concerns in M&A transactions, as well as in common commercial transactions and business relationships. Further, as demonstrated by the Siemens matter, non-U.S. enforcement agencies have begun to initiate investigations of their own, suggesting that, in the future, there is a greater likelihood that multinational corporations will have to respond to, defend, and possibly settle investigations and enforcement actions in multiple jurisdictions.
