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Despite Rhetoric On Individual Accountability, Recent FCPA Enforcement Has Targeted Entities
With ample bravado, in recent years the Foreign Corrupt Practices Act (FCPA) unit of the Department of Justice (DOJ) has proclaimed that holding individuals accountable for foreign bribery schemes is of "critical importance," and that "it is unambiguously this department's first priority" to prosecute individuals in corporate criminal matters. Similarly, Securities and Exchange Commission (SEC) officials consistently have proclaimed that "individual accountability is critical to FCPA enforcement."
Reviewing the enforcement record, however, one sees that the volume of FCPA enforcement activity with respect to individuals has steadily declined in the last three years, and in the case of the SEC, disappeared entirely. Looking beyond the numerical decline uncovers some further patterns. Of the individuals criminally charged in connection with foreign bribery schemes in recent years, most were charged with criminal offenses other than substantive FCPA violations. The enforcement record also shows that when DOJ has brought FCPA-related charges against individuals, they are rarely the executives of the companies DOJ has pursued in its notable corporate FCPA prosecutions, but rather are foreign officials or individuals associated with small or privately held companies.
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