FCPA Enforcement:  Top Ten Trends for 2009

FCPA Enforcement: Top Ten Trends for 2009

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January 28, 2009

At an anti-corruption conference in Frankfurt yesterday, there were two candid and forthcoming enforcement panels.  The US Department of Justice and SEC, together with prosecutors from Germany, the United Kingdom, Jersey and Switzerland, opened with grand statements about increased international cooperation.   There was lively competition between the prosecutors, who delivered stern comments and prosecutorial statistics that can’t be confirmed.   The prosecutor from Jersey assured everyone that that Channel Island does have controls and isn’t a Banana Republic … apparently mounting a more remedial compliance campaign.


There were raised eyebrows as a spokesman defended the Serious Fraud Office’s record on anti-bribery enforcement.  He finally relented, suggesting that the market place would have to embrace this issue before any real progress could be made.  The Swiss prosecutor was similarly disarming, inviting companies to report wrongdoing themselves because “there’s really no other way for us to find out about it”.


By comparison, the US enforcement agencies were a case study in coherence and unexpected transparency.  Pens were flying as the DoJ's Mark Mendelsohn gave, with all the usual disclaimers, his predicted Top Ten Trends for 2009.   


1.  The level of enforcement is at an all-time high and is likely to remain there.


2.  Prosecuting senior company executives in their individual capacities will be a priority.


3.  The US will investigate US and foreign issuers equally, as well as companies operating with US territory.


4.  Multi-jurisdictional investigations are on the rise.


5.  Informal international cooperation will continue to improve, together with increased mutual legal assistance.


6.  The DoJ and FBI are committing more resources to FCPA enforcement, including eight full-time, dedicated FBI investigators.


7.  The DoJ will coordinate, where appropriate, sector-wide investigations, as it has in the oil and gas, medical devices and freight forwarding industries.


8.  The pace of voluntary disclosures is likely to continue.


9.  FCPA due diligence will be a regular feature of mergers and acquisitions and transactional work.


10.  Increased enforcement of other crimes, alongside FCPA violations, is expected, including money-laundering, export controls violations and false accounting.


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FCPA Enforcement: Top Ten Trends for 2009

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