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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.

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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

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Table I—2015 DOJ Corporate FCPA Enforcement Actions

Company Fine Resolution Vehicle4

Origin5 Related Individual

Action6

Louis Berger International7

$17.1 million DPA Related civil investigation8

Yes

IAP Worldwide9 $7.1 million NPA Unclear10 Yes

Total $24.2 million

As highlighted in Tables II and III below, in 2015 DOJ corporate FCPA

enforcement, measured both in terms of the number of core actions and settlement amounts, was significantly below historical averages. involved a DOJ or SEC enforcement action or both (as is frequently the case), regardless of whether the corporate enforcement action involved a parent company, a subsidiary or both (as is frequency the case), and regardless of whether the DOJ and/or SEC brought any related individual enforcement action (as is occasionally the case). What is an FCPA Enforcement Action?, FCPA PROFESSOR (Jan. 7, 2013), http://www.fcpaprofessor.com/what-is-an-fcpa-enforcement-action (providing additional information on this method of quantifying FCPA enforcement). This method of computing FCPA statistics is consistent with the DOJ’s approach. See Friday Roundup, FCPA PROFESSOR (Mar. 22, 2013), http://www.fcpaprofessor.com/friday-roundup-72 (quoting DOJ’s FCPA Unit Chief), and is a commonly accepted method used by other scholars in other areas. See, e.g., Michael Klausner & Jason Hegland, SEC Practice In Targeting and Penalizing Individual Defendants, HARV. LAW SCH. F. ON CORPORATE GOVERNANCE AND FIN. REG. (Sept. 3, 2013), http://blogs.law.harvard.edu/corpgov/2013/ 09/03/sec-practice-in-targeting-and-penalizing-individual-defendants/.

4 DPA refers to a deferred prosecution agreement and NPA refers to a non-prosecution agreement. To learn more about these agreements in the FCPA context, see Mike Koehler, The Façade of FCPA Enforcement, 41 GEO. J. INT’L L. 907 (2010) [hereinafter Koehler, Façade of FCPA].

5 Koehler, Narrative, supra note 1, at 965 n.3. “Refers to the event or events which initially prompted the scrutiny that resulted in the FCPA enforcement action.” Id.

6 Id. at 965 n.4. “Refers to employees of the corporate entity resolving the FCPA enforcement action.” Id.

7 Press Release, DOJ, Louis Berger International Resolves Foreign Bribery Charges (July 17, 2015), http://www.justice.gov/opa/pr/louis-berger-international-resolves-foreign-bribery-charges [hereinafter Louis Berger International].

8 DOJ Enforcement of the FCPA—Year in Review, FCPA PROFESSOR (Jan. 6, 2016), http://fcpaprofessor.com/doj-enforcement-of-the-fcpa-year-in-review-6/ [hereinafter, 2016 Year in Review]. The DPA states: “after the government had made [the company] . . . aware of a False Claim Act investigation, [the company] conducted an internal investigation, discovered potential FCPA violations, and voluntarily self-reported to the [DOJ] the misconduct.” Id.

9 IAP Worldwide Services Inc. Resolves Foreign Corrupt Practices Act Investigation, FCPA PROFESSOR (June 16, 2015), http://www.justice.gov/opa/pr/iap-worldwide-services-inc-resolves- foreign-corrupt-practices-act-investigation [hereinafter IAP Worldwide Services].

10 See id. The NPA makes no mention of voluntary disclosure or other potential origins of the action.

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Table II—Corporate DOJ FCPA Enforcement Actions (2010–2015)

Year Core Actions

2015 211

2014 712

2013 713

2012 914

2011 1115

2010 1716

Table III—Corporate DOJ FCPA Enforcement Action Settlement Amounts (2010–2015)

Year Settlement Amounts

2015 $24.2 million17

2014 $1.25 billion18

2013 $420 million19

2012 $142 million20

2011 $355 million21

2010 $870 million22

11 Corporate FCPA Enforcement in 2015 Compared to Prior Years, FCPA PROFESSOR (Jan. 7, 2016), http://fcpaprofessor.com/corporate-fcpa-enforcement-in-2015-compared-to-prior-years/ [hereinafter Corporate Enforcement in 2015].

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

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Tempting as it might be, few meaningful conclusions should be drawn from 2015 DOJ corporate FCPA enforcement. For starters, year-to-year FCPA enforcement statistics, and the arbitrary cutoffs associated with them, are of marginal value given that many non-substantive factors can influence the timing of an actual corporate FCPA enforcement action.23 Moreover, and as highlighted in more detail in Table VII below, FCPA enforcement statistics in most years are impacted by a few unique events and often one or a small group of enforcement actions significantly skew enforcement statistics.24

Notwithstanding the above limitations of yearly enforcement statistics, not to mention the small quantity of DOJ corporate FCPA enforcement actions in 2015 on which to calculate statistics, two statistics are nevertheless noteworthy.

The first notable statistic is that both enforcement actions were resolved through either a non-prosecution agreement (“NPA”) or deferred prosecution agreement (“DPA”).25 These resolutions are consistent with the FCPA’s modern trend of the DOJ resolving corporate FCPA enforcement actions through such controversial alternative resolution vehicles.26 Indeed, since 2010 approximately 85% of corporate DOJ enforcement actions have involved either an NPA or DPA.27

The second notable statistic is that both corporate enforcement actions in 2015 also included related charges against company employees.28 While such actions may seem like an obvious result given that business organizations can only be exposed to criminal FCPA violations based on the conduct of actual employees,29 this 2015 statistic is notable because 72% of DOJ corporate FCPA enforcement actions since 2008 have not (at least yet) resulted in any DOJ charges against company

23 Koehler, A Snapshot, supra note 1. Because FCPA enforcement actions that involve both a DOJ and SEC component are typically announced on the same day, and because the DOJ and SEC are separate enforcement agencies, it is common for FCPA enforcement actions to be delayed while one agency waits for the other to finish its investigation of the conduct at issue and its negotiation of a resolution with a company. Additional non-substantive factors that can influence the timing of an FCPA enforcement action, although far from an exclusive list, include DOJ and SEC staffing issues (including employee departures or leaves) as well as securing corporate board approval for resolving an FCPA enforcement action. Id.

24 In this regard, in 2016 there may be an approximate $900 million enforcement action that alone will eclipse total FCPA settlement amounts in several prior years. See The Burgeoning Uzbekistan Telecommunication Investigations, FCPA PROFESSOR (Nov. 9, 2015), http://www.fcpaprofessor.com/the-burgeoning-uzbekistan-telecommunication-investigations.

25 Koehler, Façade of FCPA, supra note 4, at 909.

26 To learn more about NPAs and DPAs, including why such alternative resolution vehicles are controversial, see, e.g., Koehler, Narrative, supra note 1; Koehler, Façade of FCPA, supra note 4; Mike Koehler, Measuring the Impact of Non-Prosecution Agreements and Deferred Prosecution Agreements on FCPA Enforcement, 49 U.C. DAVIS L. REV. 499 (2015) [hereinafter Koehler, Measuring the Impact].

27 2016 Year in Review, supra note 8.

28 A Focus on DOJ Individual Actions, FCPA PROFESSOR (Jan. 12, 2016), http://fcpaprofessor.com/a-focus-on-doj-individual-actions.

29 Id.

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162 CLEVELAND STATE LAW REVIEW [Vol. 65:157 employees.30 Only time will tell whether 2015 was the beginning of a trend reversal on prosecution of company employees or merely a statistical outlier.

B. SEC Corporate FCPA Enforcement

As demonstrated in Table IV, in nine corporate FCPA enforcement actions in 2015 the SEC collected approximately $114.8 million in settlement amounts.

Table IV—2015 SEC Corporate FCPA Enforcement Actions

Company Settlement Amount

Resolution Vehicle

Origin Related Individual

Action

Bristol-Myers Squibb31

$14.7 million Administrative Order

Unclear No

Hyperdynamics32 $75,000 Administrative Order

SEC investigation33

No

Hitachi34 $19.1 million Settled Civil Complaint

Unclear No

BNY Mellon35 $14.8 million Administrative Order

Unclear No

Mead Johnson36 $12 million Administrative Order

SEC investigation37

No

30 Id. (emphasis in original). For a hypothesis why so few DOJ corporate enforcement actions result in related charges against company employees, see Koehler, Measuring the Impact, supra note 26.

31 Press Release, SEC, SEC Charges Bristol-Myers Squibb With FCPA Violations (Oct. 5, 2015), http://www.sec.gov/news/pressrelease/2015-229.html.

32 Hyperdynamics Announces Settlement with the SEC, HYPERDYNAMICS (Sept. 29, 2015), http://investors.hyperdynamics.com/releasedetail.cfm?ReleaseID=934289.

33 According to the company’s disclosure—“the SEC had issued a subpoena to Hyperdynamics concerning possible violations of the FCPA.” Id.

34 Press Release, SEC, SEC Charges Hitachi With FCPA Violations (Sept. 28, 2015), https://www.sec.gov/news/pressrelease/2015-212.html.

35 Press Release, SEC, SEC Charges BNY Mellon With FCPA Violations (Aug. 18, 2015), http://www.sec.gov/news/pressrelease/2015-170.html [hereinafter BNY Mellon].

36 Press Release, SEC, SEC Charges Mead Johnson Nutrition With FCPA Violations (July 28, 2015), http://www.sec.gov/news/pressrelease/2015-154.html [hereinafter Mead Johnson].

37 The administrative order states: In 2011, Mead Johnson received an allegation of possible violations of the FCPA in connection with the Distributor Allowance in China. In response, Mead Johnson conducted an internal investigation, but failed to find evidence that Distributor

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Company Settlement Amount

Resolution Vehicle

Origin Related Individual

Action

BHP Billiton38 $25 million Administrative Order

SEC investigation39

No

FLIR Systems40 $9.5 million Administrative Order

Voluntary Disclosure

Yes

Goodyear Tire and Rubber Co.41

$16.3 million Administrative Order

Voluntary Disclosure

No

The PBSJ Corporation42

$3.4 million DPA Voluntary Disclosure

Yes

As highlighted in Tables V and VI below, SEC corporate FCPA enforcement in 2015

was up slightly compared to historical averages, even though the slight increase in enforcement activity resulted in settlement amounts lower than historical averages.

Table V—Corporate SEC FCPA Enforcement Actions (2010–2015)

Year Core Actions

2015 943

Allowance funds were being used to make improper payments to HCPs. Thereafter, Mead Johnson China discontinued Distributor Allowance funding to reduce the likelihood of improper payments to HCPs, and discontinued all practices related to compensating HCPs by 2013. Mead Johnson did not initially self-report the 2011 allegation of potential FCPA violations and did not thereafter promptly disclose the existence of this allegation in response to the Commission’s inquiry into this matter.

In the Matter of Mead Johnson Nutrition Co., at 4 (July 28, 2015), https://www.sec.gov/litigation/admin/2015/34-75532.pdf.

38 Press Release, SEC, SEC Charges BHP Billiton With Violating FCPA at Olympic Games (May 20, 2015), http://www.sec.gov/news/pressrelease/2015-93.html [hereinafter BHP Billiton].

39 The company disclosed that it received information requests from the SEC in August 2009. See Issues To Consider From The Recent BHP Billiton Enforcement Action, FCPA PROFESSOR (May 27, 2015), http://www.fcpaprofessor.com/issues-to-consider-from-the- recent-bhp-billiton-enforcement-action.

40 Press Release, SEC, SEC Charges Oregon-Based Defense Contractor With FCPA Violations (Apr. 8, 2015), http://www.sec.gov/news/pressrelease/2015-62.html.

41 Press Release, SEC, SEC Charges Goodyear With FCPA Violations (Feb. 24, 2015), http://www.sec.gov/news/pressrelease/2015-38.html#.VOy19fnF91Z.

42 Press Release, SEC, SEC Charges Former Executive at Tampa-Based Engineering Firm With FCPA Violations (Jan. 22, 2015), http://www.sec.gov/news/pressrelease/2015-13.html [hereinafter Tampa-Based Engineering Firm].

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2014 744

2013 845

2012 846

2011 1347

2012 1948

Table VI—SEC FCPA Enforcement Action Settlement Amounts (2010–2015)

Year Settlement Amounts

2015 $114 million49

2014 $327 million50

2013 $300 million51

2012 $118 million52

2011 $148 million53

2010 $530 million54 For the same reasons discussed above, few meaningful conclusions should be

drawn from 2015 SEC corporate FCPA enforcement. Nevertheless, two statistics are noteworthy.

The first noteworthy statistic is that eight of the nine corporate enforcement actions (89%) in 2015 were resolved either through an administrative order or a DPA.55 As a result of these controversial resolution vehicles, there was no judicial scrutiny of 89% of SEC FCPA enforcement actions from 2015.56 This statistic is consistent with a clear trend regarding SEC corporate FCPA enforcement. For

43 2016 Year in Review, supra note 8.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id. It should be noted that the numbers in Table VI are approximate figures.

50 Id.

51 Id.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

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The second noteworthy statistic is that seven of the nine corporate enforcement actions (78%) in 2015 did not result in related enforcement actions against company employees.59 Again, this statistic is consistent with prior years as 83% of corporate SEC FCPA enforcement actions since 2008 have not (at least yet) resulted in any related charges of company employees.60 Similar to the criminal context, business organizations only can be exposed to civil FCPA violations based on the conduct of actual employees.61 Indeed, the 83% statistic is even more striking than the comparable 72% DOJ statistic given that the SEC, as a civil law enforcement agency, has a lower burden of proof in an enforcement action.62

Analyzing DOJ and SEC FCPA enforcement data separately in Tables I through VI above is informative given that the DOJ and SEC are separate law enforcement agencies and different issues may arise in DOJ and SEC FCPA enforcement actions.63 On the other hand, analyzing DOJ and SEC FCPA enforcement data in the aggregate is also informative because such a perspective provides a more holistic view of FCPA enforcement.

C. Aggregate Corporate FCPA Enforcement

In 2015, the DOJ and SEC together collected approximately $139 million in eleven core corporate enforcement actions.64 The average settlement amount was

57 Id. For an extended discussion of the origins and controversy of SEC administrative orders and DPAs, see Koehler, A Snapshot, supra note 1, at 166-69.

58 2016 Year in Review, supra note 8.

59 Id.

60 Id.

61 A Focus on SEC Individual Actions, FCPA PROFESSOR (Jan. 11, 2016), http://www.fcpaprofessor.com/a-focus-on-sec-individual-actions.

62 FCPA 101, FCPA PROFESSOR (Nov. 11, 2016), http://fcpaprofessor.com/fcpa-101/ (found under drop down menu labeled “Q. What about FCPA-related civil litigation?”).

63 As a civil law enforcement agency, the SEC’s burden of proof is preponderance of the evidence compared to the DOJ’s criminal burden of proof beyond a reasonable doubt. How Rare Are Parallel DOJ And SEC FCPA Enforcement Actions Against Individuals?, FCPA PROFESSOR (Aug. 14, 2015), http://fcpaprofessor.com/how-rare-are-parallel-doj-and-sec-fcpa- enforcement-actions-against-individuals/ [hereinafter How Rare].

64 As a general matter, the SEC has jurisdiction over “issuers” (companies —domestic and foreign—with shares registered on a U.S. exchange or otherwise required to make filings with the SEC). Comparing DOJ FCPA Enforcement to SEC FCPA Enforcement is Not a Valid Comparison, FCPA PROFESSOR (July 17, 2014), http://fcpaprofessor.com/comparing-doj-fcpa- enforcement-to-sec-fcpa-enforcement-is-not-a-valid-comparison/ [hereinafter Not a Valid Comparison]. In other words, the SEC generally does not have jurisdiction over private companies or foreign companies that are not issuers. Id. Thus, the two DOJ corporate enforcement actions from 2015 did not have an SEC component because the companies (Louis Berger International and IAP Worldwide) were private companies not subject to SEC jurisdiction. 2016 Year in Review, supra note 8. As a general matter, the DOJ has criminal jurisdiction over “issuers,” “domestic concerns,” (i.e. any business entity with a principal

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166 CLEVELAND STATE LAW REVIEW [Vol. 65:157 approximately $12.6 million and the median was approximately $14.7 million.65 The range of settlements was, on the high end, $25 million (BHP Billiton),66 and on the low end, $75,000 (Hyperdynamics).67

A popular issue, or so it seems, is to analyze whether corporate FCPA enforcement is up or down in any given year compared to prior years. Again, year- to-year FCPA enforcement statistics, and the arbitrary cutoffs associated with them, are of marginal value given that many non-substantive factors can influence the timing of an actual corporate FCPA enforcement action.

Nevertheless, and accepting year-to-year FCPA statistics for what they are, the issue remains: how best to analyze and interpret FCPA statistics over time? Consider the following analogy. In Year One, a city issues 100 speeding tickets and collects $20,000 in fines on those tickets. In Year Two, a city issues ninety speeding tickets; however, because certain drivers were going really fast, the city collects $25,000 in fines on those tickets. Was there less enforcement in Year Two compared to Year One? Most, it is assumed, would say that enforcement in Year Two was less than in Year One even though the city collected more money from speeding tickets in Year Two.

The same logic applies to year-to-year FCPA statistics and the more accurate and reliable way to keep and analyze FCPA enforcement statistics is by focusing on unique instances of FCPA scrutiny (not settlement amounts) and tracking enforcement actions using the ‘core’ approach.68 Using this approach, corporate FCPA enforcement in 2015 was up slightly compared to 2014 and 2013 and generally consistent with historical norms, notwithstanding the fact that DOJ corporate enforcement in 2015 was substantially down compared to prior year

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