A Principled Approach
Edited by Tina Søreide and Abiola Makinwa
Chapter 3: The path of FCPA settlements
In the United States, anti-corruption cases brought under the Foreign Corrupt Practices Act (“FCPA”) against corporations dramatically increased in size and in number. Federal prosecutors began to advertise how they target foreign companies, highlighting as a special priority the ambitious enforcement goal to “root out global corruption.” Settlements have dominated the enforcement approach in the United States, largely without judicial review, but instead almost entirely through negotiation between corporations and prosecutors and regulators. As described in this chapter, FCPA enforcement, in terms of numbers of cases, increased in the 2000s and peaked in 2010. Total penalties, however, peaked again in 2016, as the numbers of cases brought by the DOJ declined. The expanded use of the FCPA relied, from the outset, on settlements with corporations. Initially, there was a broad divergence in the outcomes in FCPA prosecutions. The DOJ responded with an effort to provide more detailed information to the bar concerning FCPA enforcement and devised a pilot approach intended to more systematically guide the content of settlements. Whether that effort has been successful is hard to assess. The arc of FCPA prosecutions in the United States, however, suggests the many challenges of adopting a clear and principled approach towards settlements, which necessarily involve compromise in complex and uncertain circumstances. In recent years, more U.S. FCPA cases have resulted in declinations, while other countries have adopted settlement-oriented approaches towards foreign bribery enforcement. It may be that foreign bribery enforcement will proceed in a more multilateral fashion, with more enforcement outside the United States. The chapter concludes by discussing how the U.S. approach has influenced new settlement programs, but how other countries have adopted approaches less deferential to prosecutors, with a greater degree of judicial oversight and public information concerning the process.
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