FCPA: The Road Ahead in 2021?

The Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., remains a powerful tool in the government’s arsenal for fighting bribery overseas.  As 2020 comes to a close, it is helpful to review this statute’s impact over the past 12 months and to assess what 2021 might bring in enforcement actions.

During calendar year 2020, the United States Department of Justice filed and/or resolved 29 cases involving violations of the FCPA in 10 district courts across the United States.  See https://www.justice.gov/criminal-fraud/case/related-enforcement-actions/2020.  Simultaneously during 2020, the United States Securities and Exchange Commission resolved nine civil enforcement actions for violations of the FCPA.  See https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml.  These cases involved business operations in foreign countries including Malaysia, Brazil, China, Mexico, Algeria, and Ghana.  One SEC resolution exceeded the $1 billion mark in combined disgorgement and civil penalties.

With President-Elect Biden poised to take the oath of office on January 20, 2021, the legal community and C-Suites across the country eagerly anticipate the nomination of the next Attorney General.  Furthermore, the President of the United States nominates each of the five Commissioners of the SEC and names the Chair.  Although the five-year terms of each of the Commissioners are staggered, and no more than three Commissioners may belong to the same political party, the Biden administration will certainly impact the direction of the Commission.  Given Mr. Biden’s track record and role as Vice President under Barack Obama, it is reasonable to assume that President-Elect Biden will instill a tone at the top similar to that of the 44th President of the United States.  Prosecutions of FCPA matters could increase significantly from their current levels.  It is also likely that greater focus will be placed on business operations in countries such as Russia and China.  The variable we all face is how quickly the new administration will be able to shift direction and priorities in the current pandemic.  Only time will tell.