FCPA Enforcement Trends

Comparison of Enforcement in 2022 Compared with Prior Years

NUMBER OF MATTERS INITIATED OR RESOLVED BY DOJ AND SEC (2017-2022)

We define a matter as all enforcement actions involving the same misconduct. For example, the SEC brought cases against JBS S.A., Joesley Batista, and Wesley Batista related to J&F Investimentos’ activities in Brazil from 2005 to 2017. We count actions against those three defendants as one SEC matter. Where DOJ and SEC brought parallel actions, we include the matter in both DOJ and SEC’s tally. Where a matter was initiated and resolved from 2017 through 2022, we tallied the matter in the year it was resolved.

Comparison of Enforcement in 2022 Compared with Prior Years (Cont’d)

NUMBER OF DEFENDANTS IN MATTERS INITIATED OR RESOLVED BY DOJ AND SEC (2017-2022)

This chart represents the number of defendants whose cases were resolved or initiated from 2017 through 2022. Where cases were brought and resolved in different years, we counted the defendant in its year of resolution, and not its initiation.

Comparison of DOJ Penalties Assessed (2017-2022)

Penalties include any criminal or civil fines, forfeitures, disgorgements, criminal penalties, restitution, or judgments. Where DOJ credited penalties paid to SEC, we offset DOJ’s penalty amount so as not to double count penalties within this chart and the SEC chart on the following page. We did not offset payments DOJ credited to foreign regulators to provide an accurate account of the total penalties assessed.

Comparison of SEC Penalties Assessed (2017-2022)

Penalties include any criminal or civil fines, forfeitures, disgorgements, criminal penalties, restitution, or judgments. Where SEC credited penalties paid to DOJ, we offset SEC’s amount so as not to double-count penalties within this chart and the DOJ chart on the previous page. We did not offset payments SEC credited to foreign regulators to provide an accurate account of the total penalty assessed.

Locus of Wrongdoing in US Enforcement Actions (DOJ and SEC) and Number of FCPA Matters Focused There

Industries at Issue

List of Corporate Defendants and Resolution Type in Actions Brought or Resolved in 2022

PARALLEL DOJ-SEC ACTIONS (GROUPED BY MATTER)

In the Matter of ABB Ltd.

ABB Ltd. (DPA; Cease and Desist)
ABB Management Services Ltd. (Plea Agreement)
ABB South Africa (Pty) Ltd. (Plea Agreement)

In the Matter of GOL Linhas Aereas Inteligentes S.A.

GOL Linhas Aereas Inteligentes S.A. (DPA; Cease and Desist)

In the Matter of Honeywell International Inc.

Honeywell International Inc. (DPA; Cease and Desist)
UOP, LLC, d/b/a Honeywell UOP (DPA)

In the Matter of Stericycle, Inc.

Stericycle, Inc. (DPA; Cease and Desist)

INDIVIDUAL DEFENDANTS IN DOJ ACTIONS

United States v. Ng Chong Hwa

Ng Chong Hwa (Conviction)

United States v. John Robert Luzuriaga Aguinaga

John Robert Luzuriaga Aguinaga (Plea Agreement)

United States of America v. Jhonnatan Teodoro Marin Sanguino

Jhonnatan Teodoro Marin Sanguino (Conviction)

United States of America v. Joseph Baptiste and Roger Richard Boncy

Joseph Baptiste and Roger Richard Boncy (Charges Dismissed)

CORPORATE DEFENDANTS IN DOJ ACTIONS

United States of America v. Glencore International A.G.

Glencore International A.G. (Plea Agreement)

In Re: Jardine Lloyd Thompson Group Holdings Ltd.

Jardine Lloyd Thompson Group plc (Declination with Disgorgement)

INDIVIDUAL DEFENDANTS IN SEC ACTIONS

Securities and Exchange Commission v. Jerry Li

Jerry Li (Default Judgment)[RTJ1]

CORPORATE DEFENDANTS IN SEC ACTIONS

(ALL RESOLVED THROUGH CEASE AND DESISTS)

In the Matter of Oracle Corp.

In the Matter of Tenaris S.A.

In the Matter of KT Corporation

[RTJ1]Note that we did not have these sections last year because there were no defendants to list. As a result, this section may need to be 2 pages instead of 1.

2022 Penalties Assessed in Matters Against Corporate Defendants

PARALLEL DOJ-SEC ACTIONS (4)

DOJ ACTIONS (2)

SEC ACTIONS (3)

2022 Penalties Assessed in Matters Against Individual Defendants

DOJ ACTIONS

SEC ACTIONS

Spotlight on Potential Factors Affecting Corporate Resolutions

MONITORSHIPS

In 2022, corporate monitors in FCPA resolutions made a return following none in 2020 and 2021. DOJ imposed a three-year monitor on multi-national commodity trading and mining firm Glencore International A.G. (Glencore) following its guilty plea to a “decade-long scheme” to make and conceal corrupt payments and bribes through intermediaries for the benefit of foreign officials across multiple countries.”[1] Separately, international waste management company Stericycle Inc. (Stericycle) agreed to the imposition of a two-year monitor as part of its deferred prosecution agreement with DOJ relating to the alleged bribery of foreign officials in Brazil, Mexico, and Argentina.[2]

The return of corporate monitors in FCPA resolutions came on the heels of revised DOJ guidance issued in October 2021, which counseled DOJ to favor the imposition of a monitor “where there is a demonstrated need for, and clear benefit to be derived from, a monitorship,” and directed prosecutors to consider the use of monitorships in cases “[w]here a corporation’s compliance program and controls are untested, ineffective, inadequately resourced, or not fully implemented at the time of a resolution.”[3] Consistent with this guidance, in imposing monitors on Glencore and Stericycle, DOJ emphasized the historical failures of the companies’ compliance programs and noted that remedial actions taken in response to these failures were new and untested, thus necessitating an independent monitor.

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[1] See DOJ Press Release, United States of America v. Glencore International A.G., https://www.justice.gov/opa/pr/glencore-entered-guilty-pleas-foreign-bribery-and-market-manipulation-schemes.

[2] See DOJ Press Release, United States of America v. Stericycle, Inc., https://www.justice.gov/opa/pr/stericycle-agrees-pay-over-84-million-coordinated-foreign-bribery-resolution.

[3] Memorandum from Deputy Attorney General Lisa Monaco (Oct. 28, 2021), https://www.justice.gov/opa/speech/file/1100531/download.

Coordination of Settlements Between Regulators

DOJ’s “No Piling-On” Policy[1] directs prosecutors to avoid the “unnecessary imposition of duplicative fines, penalties, and/or forfeiture against the company” by, among other things:

coordinating with other federal, state, local, or foreign authorities when resolving a case concerning the same misconduct; and
considering whether “multiple penalties serve the interests of justice,” including “the egregiousness of the misconduct; statutory mandates regarding penalties; the risk of delay in finalizing a resolution; and the adequacy and timeliness of a company’s disclosures and cooperation with the Department.”[2]

In 2022, consistent with this policy, DOJ credited the following fines, penalties, and/or forfeiture paid to foreign authorities:

$1.7 million credited to GOL Linhas Aereas Inteligentes, S.A. for its payment to Brazilian authorities;[3]
Up to approximately $136 million and $29 million credited to Glencore for its payment to authorities in the United Kingdom and Switzerland, respectively;[4]
$17.5 million credited to Stericycle for its payment to Brazilian authorities;[5]
$29 million credited to Jardine Lloyd Thompson Group plc for its disgorgement paid to the United Kingdom authorities;[6]
$279,500,000 credited to ABB Ltd. for its payments to South African, Swiss, and German regulators; and
$39,621,375 credited to Honeywell International, Inc. for its payments to foreign regulators.

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[1] Memorandum from Rod S. Rosenstein, “Policy on Coordination of Corporate Resolution Penalties,” (May 9, 2018), https://www.justice.gov/opa/speech/file/1061186/ download. This policy, although formally implemented by Rosenstein, was devised during the prior administration, and reflects the continuity of approach between the two administrations.

[2] Id.

[3] Deferred Prosecution Agreement, United States of America v. GOL Linhas Aereas Inteligentes, S.A. (Sept. 16, 2022) available, https://www.justice.gov/criminal-fraud/file/1535366/download.

[4] Plea Agreement, United States of America v. Glencore International A.G. (May 24, 2022), available at https://www.justice.gov/usao-sdny/press-release/file/1508166/download.

[5] Deferred Prosecution Agreement, United States of America v. Stericycle, Inc. (April 18, 2022), available at https://www.justice.gov/opa/press-release/file/1496416/download.

[6] Declination Letter, In Re: Jardine Lloyd Thompson Group Holdings Ltd. (Mar. 18, 2022), available at https://www.justice.gov/criminal-fraud/file/1486266/download.