WHITE PAPER
FCPA 2023 Year In Review
Foreign Corrupt Practices Act (“FCPA”) enforcement continues to slowly rebound from
pre-pandemic levels. In 2023, the Department of Justice (“DOJ”) and the Securities and
Exchange Commission (“SEC”) resolved 13 corporate FCPA matters for $733million in
penalties, disgorgement, and interest. Meanwhile, the DOJ announced nine FCPA indict-
ments against individuals and, for the third year in a row, the SEC announced no individual
FCPA enforcement actions. DOJ and SEC leadership attributed their enforcement statis-
tics to the natural ebb and flow of FCPA cases and the lingering effects of the COVID-19
pandemic, and not due to any lack of focus on FCPA enforcement. Indeed, the Biden
administration continues to prioritize anticorruption enforcement, reiterating that fighting
corruption is a core national security interest.
This White Paper reviews 2023 FCPA enforcement, the DOJ’s enhanced incentives for
companies to voluntarily self-disclose FCPA issues, and other changes to corporate crim-
inal enforcement policies and guidance on corporate compliance programs.
January 2024
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THERE WERE FIVE KEY HIGHLIGHTS FROM FCPA ENFORCEMENT IN 2023.
1
The number of corporate FCPA resolutions rebounded to pre-
pandemic levels, but the total amount of fines imposed has yet
to do the same. In 2023, the DOJ and the SEC resolved a total
of thirteen corporate FCPA cases, accounting for $733mil-
lion in penalties, disgorgement, and interest. Individual FCPA
enforcement activity continues to lag pre-pandemic levels. The
DOJ announced only nine indictments of individuals and no
plea agreements under the FCPA, and SEC resolved no FCPA
actions with individuals for the third year in a row.
2
The slow rebound in FCPA enforcement activity can be attrib-
uted to the lingering impact of the COVID-19 pandemic and
what may be a general reluctance on the part of companies
to voluntarily self-disclose to the DOJ and the SEC. Moving
forward, we anticipate that FCPA enforcement statistics will
continue to rebound, especially given the backlog of over 90
publicly announced DOJ and / or SEC FCPA investigations in
the pipeline.
3
The DOJ announced important revisions to its corporate
enforcement policies. Most significantly, in January, the
Criminal Division announced a new and narrow path for com-
panies with what the DOJ considers “aggravating circum-
stances” to receive a declination of prosecution and decrease
in fine amounts.
4
The DOJ announced additional guidance on corporate com-
pliance programs regarding the use of personal devices and
third-party messaging platforms to conduct company busi-
ness, how companies can use compensation incentives and
clawbacks to incentivize compliant behavior, and a focus on
the use of data analytics. These steps intend to further the
DOJ’s goal of elevating standards for corporate compliance
programs.
5
In other news, the DOJ announced an international anti-bribery
initiative and issued two new FCPA opinions, President Biden
signed a law addressing the demand side of bribery, and
the SEC issued a record-breaking $279million whistleblower
award in an FCPA case.
CONTINUED REBOUND IN POST-PANDEMIC FCPA
ENFORCEMENT
In 2023, President Biden reiterated that fighting corruption
is a core national security interest for his administration, and
DOJ and SEC enforcement leadership continued to stress the
importance of corporate and individual FCPA enforcement.
As outlined below, the number of resolved corporate FCPA
enforcement matters rebounded to pre-pandemic levels, while
the total fine amount still lags. As they have done in prior years,
DOJ and SEC officials stated that there is a healthy backlog of
FCPA investigations and predicted “a lot more” enforcement
activity in 2024 and beyond, especially given that FCPA cases
often take several years to investigate and resolve.
DOJ AND SEC RESOLVED 13 CORPORATE FCPA
CASES AND COLLECTED $733MILLION IN FINES
AND PENALTIES IN 2023
In 2023, the DOJ and the SEC resolved a total of 13 corpo-
rate FCPA cases, totaling $733million in penalties, disgorge-
ment, and interest, when considering credits and offsets in one
related foreign enforcement action and one company’s inabil-
ity to pay in another enforcement action. The DOJ and the SEC
coordinated only two corporate resolutions with each other.
The 13 corporate cases are on par with pre-pandemic levels.
The total monetary penalties of $733million assessed in 2023,
however, fall far short of the $2.65billion and $2.78billion col-
lected by the DOJ and the SEC in 2019 and 2020, respectively.
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Meanwhile, coordinated FCPA resolutions with regulators out-
side the United States dropped from prior years. In 2023, the
DOJ and the SEC coordinated only two resolutions with author-
ities outside the United States. In August, the DOJ and the
SEC, in coordination with authorities in Colombia, resolved an
FCPA matter resulting in an additional $20.3million in fines and
penalties paid to Colombian authorities, and in mid-December,
the DOJ separately agreed to credit a criminal penalty up to
a maximum of $22.4million paid by the resolving company to
authorities in Brazil for violations of Brazilian law related to the
same conduct. The Brazil investigation is ongoing.
FIGURE 1: Total Fines and Penalties Collected in FCPA Corporate Actions and in Actions
Involving a Coordinated Global Anticorruption Resolution, 2019–2023
Corporate Actions
2019 2020 2021 2022 2023
# US$ # US$ # US$ # US$ # US$
DOJ / SEC Total 14 $2.65B 12 $2.78B 4 $259.0M 8 $877.9M 13 $733.3M
Non-U.S. Total
(Involving a
Coordinated
Non-U.S. Resolution)
2 $0.37B 4 $6.31B 2 $359.6M 4 $348.0M 2 $42.7M
Global Total $3.02B $9.09B $618.6M $1.23B $776.0M
Resolving Authorities Brazil
U.S.
Brazil
France
Hong Kong
Singapore
UK
U.S.
Brazil
Switz.
UK
U.S.
Brazil
Germany
South Africa
Switz.
UK
Brazil
Colombia
Individual FCPA Enforcement Statistics Continue to Lag
Pre-Pandemic Enforcement Levels
In 2023, DOJ and SEC officials emphasized individual account-
ability and encouraged companies to provide information
about the conduct of executives and employees to qualify for
full cooperation credit. However, individual FCPA enforcement
statistics continue to lag pre-pandemic enforcement levels.
In 2023, the DOJ announced nine FCPA indictments involv-
ing individuals, four of which related to a corporate FCPA
resolution. Meanwhile, the SEC announced zero FCPA individ-
ual actions. In fact, the SEC has not brought an FCPA matter
against an individual since April 2020. These statistics nearly
equal 2022’s enforcement activity against individuals and
reflect a trend of a drop in individual FCPA enforcement since
the onset of the pandemic. By comparison, in 2019, the DOJ
announced 25 indictments and pleas, and the SEC announced
six enforcement actions against individuals.
FIGURE 2: DOJ and SEC Individual FCPA Enforcement Actions, 2019–2023
Type of
Action 2019 2020 2021 2022 2023
Indictments 16 7 6 6 9
Pleas 9 8 3 1 0
DOJ – Total 25 15 9 7 9
SEC – Total 6 1 0 0 0
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FIGURE 3: DOJ Individual FCPA Indictments, 2023
Individual Date Description
1 Glenn Oztemel Feb. 17
(indictment)
U.S.-based oil trader at Freepoint (Glenn Oztemel), his
brother who worked at another company (Gary Oztemel),
and a Brazil-based intermediary (Innecco) indicted for their
alleged roles in a scheme to pay bribes to Brazilian officials
to win contracts with Brazil’s state-owned and state-con-
trolled energy company, Petróleo Brasileiro S.A. (Petrobras).
Freepoint resolved an FCPA enforcement action with the
DOJ in December 2023 related to payments to Petrobras
officials in Brazil.
2 Eduardo Innecco Feb. 17
(indictment)
3 Gary Oztemel Aug. 29
(indictment)
4 Javier Alejandro Aguilar
Morales
Aug. 3
(indictment)
Former oil and commodities trader indicted for his alleged
role in a scheme to make improper payments to Mexican
government officials. Morales’s former employer resolved an
FCPA enforcement action with the DOJ in December 2020
related to improper payments to officials in Brazil, Ecuador,
and Mexico.
5 Samuel Bankman-Fried Mar. 28
(superseding indictment)
Former CEO of cryptocurrency exchange indicted for his
alleged improper transfer of millions in cryptocurrency to
Chinese officials to unfreeze certain cryptocurrency trading
accounts that collectively contained approximately $1 billion
in cryptocurrency.
6 Orlando Alfonso
Contreras Saab
Sept. 11
(criminal information)
Criminal information filed against a Venezuelan national for
allegedly conspiring with Colombian and Venezuelan indi-
viduals to make improper payments to Venezuelan officials
to obtain contracts to distribute food in Venezuela.
7 Amadou Kane Diallo Sept. 20
(superseding indictment)
Senegalese national indicted for allegedly making improper
payments to Senegalese government officials to secure a
landgrant from the Senegal government.
8 Carl Alan Zaglin Dec. 20
(unsealed indictment)
A Georgia businessman (Zaglin) and a former Florida resi-
dent (Marchena) indicted for their alleged participation in
a scheme to pay and conceal bribes to Honduran govern-
ment officials to secure contracts to provide goods to the
Honduran National Police.
9 Aldo Nestor Marchena Dec. 20
(unsealed indictment)
Several individuals were sentenced for FCPA-related offenses
in 2023. In May, a former banker was sentenced to 10 years in
prison after he was convicted by a jury in April 2022 for con-
spiring to launder billions of dollars from a Malaysian devel-
opment fund and conspiring to pay more than $1.6billion in
bribes to Malaysian government officials. Four individuals who
previously pled guilty to FCPA charges were also sentenced.
• • In January, a federal court sentenced a former chief execu-
tive officer and chief operating officer of a European oil
company to one year in prison and a fine of $1.5million,
following a guilty plea to one count of conspiracy to violate
the FCPA.
• •
In May, a federal court sentenced a former non-govern-
mental organization president to three and a half years in
prison, following a guilty plea to one count of conspiracy to
violate the FCPA.
• • In August, a federal court sentenced a former Petróleos de
Venezuela SA (“PDVSA”) director to one year and a day in
prison and a fine of $472,000, following a guilty plea to one
count of conspiracy to violate the FCPA.
• •
In September, a federal court sentenced a Canadian co-
founder of an energy startup to three years in prison, fol-
lowing a guilty plea to one count of conspiracy to violate
the FCPA related to a bribery scheme involving former
Chadian diplomats. Notably, the DOJ recommended a
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Jones Day White Paper
shorter sentence because the Canadian proactively coop-
erated with the DOJ by sharing information regarding his
co-conspirators. The judge, however, stated that the DOJ’s
recommended sentence was too lenient given the scale
of the bribery and opted for a three-year sentence to help
deter future crimes.
Since the onset of the pandemic in the United States in early
2020 and through the end of 2023, the DOJ has tried only one
FCPA case. According to the chief of the FCPA unit, in 2024,
there will be an “active and full trial docket” of cases under
the FCPA, anti-money laundering laws, and other anticorrup-
tion laws.
Meanwhile, the DOJ filed indictments against two foreign gov-
ernment officials who were the alleged recipients of corrupt
payments under U.S. anti-money laundering laws, while the
alleged payers were charged under the FCPA.
As another tool to combat foreign corruption, the Office of
Foreign Assets Control (“OFAC”) continued to sanction indi-
viduals and entities under the Global Magnitsky Act to dis-
courage “the transfer or the facilitation of the transfer of the
proceeds of corruption.” Last year, OFAC issued sanctions
against dozens of individuals and entities tied to corruption or
human rights abuses.
POTENTIAL REASONS FOR LAG IN FCPA
ENFORCEMENT ACTIVITY
The lack of a full rebound in FCPA enforcement statistics as
compared to pre-pandemic levels is likely the result of a few
factors, most notably the medium-term impact of the COVID-19
pandemic.
• •
Continued Impact of the COVID-19 Pandemic on FCPA
Enforcement. DOJ and SEC officials acknowledged the
continued impact of the COVID-19 pandemic on FCPA
enforcement; in particular, the pandemic has impacted
the agencies’ ability to conduct in-person FCPA investiga-
tions, coordinate with foreign counterparts, and meet with
company and individual counsel. Since FCPA cases typically
take years to investigate, the impact of the pandemic on
enforcement may continue to linger for some time.
• • Fewer Self-Reports to DOJ and SEC. Notwithstanding DOJ
and SEC efforts to encourage companies to voluntarily self-
disclose potential misconduct, companies have questioned
the benefits of self-disclosure, which has potentially led to
fewer reports of potential FCPA violations to the DOJ and
the SEC. Still, the DOJ’s enhanced incentives programs for
companies to self-disclose FCPA violations, as summarized
in this White Paper, may lead to increased incidence of self-
disclosures moving forward.
• •
DOJ and SEC Focus on Other Issues. Another potential rea-
son for the recent decline in FCPA resolutions is the DOJ
and SEC focus on other enforcement priorities. In October,
the deputy attorney general (the “DAG”) stated that the
rapid expansion of national security-related corporate crime
has led to the biggest shift in corporate criminal enforce-
ment during her time in government. This expansion covers
a variety of criminal and regulatory violations in addition to
international bribery, including sanctions violations, export
controls violations, money laundering, terror financing, and
crypto-related crime. The DOJ plans to look for FCPA viola-
tions connected to these violations. Meanwhile, the SEC is
focusing on other emerging issues, such as cryptocurrency
and cases based on environmental, social, and governance
(“ESG”) matters. Indeed, in its enforcement statistics for its
fiscal year ending September 30, 2023, the SEC’s FCPA
enforcement amounted to only 2% of the SEC’s total new
enforcement actions for the year.
Nevertheless, the DOJ and the SEC have made clear that
they remain committed to enforcing the FCPA. The chief of
the SEC’s FCPA Unit acknowledged the SEC’s relatively low
enforcement numbers but attributed the trend to the “ebb and
flow” of new cases, rather than any drop in actual enforce-
ment activity. We anticipate that FCPA enforcement statistics
will continue to rebound in the coming years, especially given
the backlog of more than 90 publicly announced DOJ and / or
SEC FCPA investigations in the pipeline, and the DOJ’s and the
SEC’s shared objective of strengthening partnerships with their
anticorruption enforcement counterparts around the world.
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DOJ ANNOUNCED MAJOR UPDATES TO
CORPORATE CRIMINAL ENFORCEMENT POLICIES
The DOJ continued to take steps to revise corporate enforce-
ment policies to incentivize companies to voluntarily self-
disclose, cooperate, remediate, and implement effective
compliance programs.
Criminal Division Announced Revised Corporate
Enforcement Policy
In January, the assistant attorney general for the Criminal
Division (the “AAG”) announced significant revisions to the
Criminal Division Corporate Enforcement and Voluntary Self-
Disclosure Policy, which is set forth in Section 9-47.120 of the
Justice Manual (the “Corporate Enforcement Policy”). The
revised Corporate Enforcement Policy is an outgrowth of the
Criminal Division’s prior FCPA Corporate Enforcement Policy,
which outlined the Division’s approach in FCPA cases involving
companies that self-disclose wrongdoing and cooperate with
investigations. The requirements for companies to receive full
cooperation credit under the revised Corporate Enforcement
Policy are stringent, and DOJ prosecutors retain significant
discretion to determine the form and size of any eventual reso-
lution with the agency.
The FCPA Corporate Enforcement Policy, adopted in 2017,
created a presumption that, absent any “aggravating fac-
tors,” the DOJ will decline to take any enforcement action
against a company that: (i) voluntarily self-discloses crimi-
nal conduct to the DOJ; (ii) fully cooperates with the DOJ’s
investigation; and (iii) takes timely and appropriate remedia-
tion steps. “Aggravating factors” include, but are not limited to,
“involvement by executive management of the company in the
misconduct, significant profit to the company from the miscon-
duct, or pervasive or egregious misconduct.”
Like the previous FCPA Corporate Enforcement Policy, if there
are no “aggravating factors” present, such as the involvement
of senior management in the misconduct at issue, a company
can qualify for a presumption of a declination if it voluntarily
self-disclosed the misconduct, fully cooperated, and timely
and appropriately remediated the misconduct. This option is
available not only for FCPA cases, but for all cases handled by
the Criminal Division.
Moving forward, under the revised policy, a company with
“aggravating factors” that voluntarily self-discloses corporate
criminal conduct, including potential FCPA violations, may nev-
ertheless qualify for a declination of prosecution if the com-
pany meets three more stringent requirements:
1.
The voluntary self-disclosure was made immediately
upon the company becoming aware of the allegation of
misconduct;
2.
At the time of the misconduct and the disclosure, the com-
pany had an effective compliance program and system of
internal accounting controls that enabled the identification
of the misconduct and led to the company’s voluntary self-
disclosure; and
3.
The company provided extraordinary cooperation with
the DOJ’s investigation and undertook extraordinary
remediation.
While these changes are intended to provide an enhanced
incentive for companies to self-disclose misconduct and
cooperate, it remains to be seen whether they will have this
effect in practice. What qualifies as truly extraordinary coop-
eration and remediation will vary depending on each case
and will be subject to prosecutorial discretion. In January,
the AAG “note[d] some concepts—immediacy, consistency,
degree, and impact—that apply to cooperation by both indi-
viduals and corporations... [and] will help to inform [the DOJ’s]
approach” in making these assessments under the Revised
Policy. Addressing this ambiguity in March, the AAG noted
that for “extraordinary” cooperation and remediation, compa-
nies must go “above and beyond.” With respect to coopera-
tion, this includes voluntarily making foreign-based employees
available for interviews in the United States, producing relevant
documents outside the country that do not implicate foreign
data privacy laws, and collecting, analyzing, translating, and
organizing information from abroad. And, with respect to reme-
diation, this includes conducting root-cause analyses and tak-
ing action to prevent the misconduct from occurring, even in
the face of substantial cost or pressure from the business,
and holding wrongdoers accountable, whether through termi-
nation, suspension, or recoupment of compensation.
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As for what constitutes an “immediate” self-disclosure, the
DOJ attempted to provide additional clarity. In March, the
then-chief of the DOJ’s FCPA Unit explained that a company
should self-disclose suspected misconduct in a “reasonably
prompt” manner. The chief contrasted one company—which
did not qualify for a presumption of declination because it
took nine months to self-disclose to the DOJ after it had sub-
stantiated the allegation—with a separate company that did
qualify for a presumption of declination because it took only
three months to self-disclose to the DOJ after learning of the
potential misconduct and less than a day after substantiating
that misconduct.
Earlier, in March, the head of the DOJ Fraud Section’s
Corporate Enforcement, Compliance & Policy Unit stated his
“personal opinion” that in order to qualify for a presumption of
declination, a company with aggravating factors should take
only a “matter of weeks” as opposed to several months to self-
disclose. He acknowledged that the DOJ is aware that compa-
nies may need time to hire and consult with lawyers and their
boards before disclosure. It remains to be seen how the DOJ
will interpret these requirements under the Revised Corporate
Enforcement Policy given various fact scenarios.
Even if a company does not meet the requirements for a pre-
sumption of declination, the Revised Corporate Enforcement
Policy provides significant potential benefits in other contexts.
• • If a criminal resolution is warranted for a company that vol-
untarily self-discloses misconduct, fully cooperates, and
timely and appropriately remediates, the Criminal Division
generally will not require a guilty plea and will apply a fine
reduction of between 50% and 75% off the low end of the
applicable U.S. Sentencing Guidelines (“U.S.S.G.”) penalty
range—up from a previous maximum reduction of 50%. The
AAG emphasized that in all cases, prosecutors have discre-
tion to determine the starting point within the Guidelines
range—including in cases where the company has a history
of prior misconduct. In such cases, the reduction generally
will not be from the low end of the range.
• •
For companies that do not voluntarily self-disclose mis-
conduct but nevertheless fully cooperate and timely and
appropriately remediate, the Criminal Division will recom-
mend up to a 50% reduction off the low end of the U.S.S.G.
fine range—twice the maximum amount of 25% available
under the previous version of the Corporate Enforcement
Policy. As in self-disclosure cases, where a company has a
history of prior wrongdoing, the reduction will likely not be
off the low end of the range.
FIGURE 4: A Comparison of the FCPA Corporate Enforcement Policy and the Corporate Enforcement Policy
FCPA Corporate Enforcement Policy
(Nov. 2017–Jan. 2023)
Corporate Enforcement Policy (Jan.
2023–Present)
Scope • • Applied to all nationwide FCPA cases • • Applies to nationwide FCPA cases and all
matters handled by the Criminal Division
Voluntary Self-Report,
Full Cooperation, and
Remediation and One or
More “Aggravating Factors”
• • No presumption of declination • • The DOJ may determine that a declina-
tion is appropriate if the company dem-
onstrates it:
--
Made an "immediate" voluntary self-
disclosure to the DOJ;
--
Had an effective compliance program
and system of internal accounting
controls at the time of misconduct that
detected the suspected wrongdoing;
--
Provided "extraordinary" cooper-
ation; and
--
Undertook "extraordinary" remediation
continued on next page
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FCPA Corporate Enforcement Policy
(Nov. 2017–Jan. 2023)
Corporate Enforcement Policy (Jan.
2023–Present)
Voluntary Self-Report,
Full Cooperation, and
Remediation and No
“Aggravating Factors”
• • Presumption of declination
• •
In the event presumption of declination
is overcome, 50% off the low end of the
U.S.S.G. fine range
• •
Generally will not require a corporate
monitor if the company had implemented
an effective compliance program
• • Presumption of declination
• •
In the event presumption of declination
is overcome, 50%–75% off the low end
of the U.S.S.G. fine range
• •
Generally will not require a corporate
monitor if the company had implemented
an effective compliance program
Full Cooperation and
Remediation but No Voluntary
Self-Report (With or Without
“Aggravating Factors”)
• •
Up to 25% off the low end of the U.S.S.G.
fine range (except in the case of a crimi-
nal recidivist)
• •
Up to 50% off the low end of the U.S.S.G.
fine range (except in the case of a criminal
recidivist)
The Corporate Enforcement Policy provides significant incen-
tives for companies to consider when deciding whether to
self-disclose conduct that may violate the FCPA. However, it
is still the case that companies will face uncertainty in various
respects in connection with their decision-making processes.
These include, but are not limited to, the broad range of inter-
pretation afforded to DOJ prosecutors under the Corporate
Enforcement Policy and potential collateral consequences,
such as the prospect of a parallel investigation by the SEC
or a foreign regulator, civil litigation, reputational harm, and
administrative sanctions (e.g., suspension or debarment).
Last year, the DOJ issued FCPA-related declinations to two
companies pursuant to the Corporate Enforcement Policy. To
date, 19 FCPA declinations have been issued under this policy
and the predecessor FCPA Corporate Enforcement Policy.
FIGURE 5: DOJ Declinations Pursuant to the Corporate Enforcement Policy, 2023
Company Date Disgorgement Description
1 Corsa Coal Corp.
(U.S.: Energy)
Mar. 8 $1.2M (based on
inability to pay a
total of $32.7M)
Improper payments to Egyptian government
officials to obtain and retain lucrative contracts
to supply coal to an Egyptian state-owned and
-controlled coke company.
2 Lifecore Biomedical, Inc.
(U.S.: Health Care)
Nov. 16 $406.5K Improper payments to one or more Mexican
government officials, by Lifecore’s former U.S.
subsidiary, paid both prior to and after Lifecore’s
acquisition, to secure a permit and prepare
fraudulent manifests.
DOJ Announced Safe Harbor Policy for Voluntary
Self-Disclosures in Mergers and Acquisitions
In October, the DAG deliveredremarks announcing a new
Mergers & Acquisitions (“M&A”) Safe Harbor Policy (the “Safe
Harbor Policy”), which applies across all DOJ divisions. The
Safe Harbor Policy builds upon a similar policy previously
applied by the DOJ’s Criminal Division in FCPA cases under
the former FCPA Corporate Enforcement Policy.
Under the Safe Harbor Policy, to receive a presumption of a
declination from the DOJ, an acquiring company in a “bona
fide, arm’s-length” M&A transaction must:
• •
Voluntarily self-disclose the suspected misconduct at the
acquired entity within six months of the date the deal closed,
whether the conduct is discovered pre- or post-acquisition;
• • Cooperate with any ensuing DOJ investigation;
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• •
Fully remediate the misconduct within one year from the
closing date; and
• • Pay any applicable restitution or disgorgement.
The DAG noted that the post-closing timelines for self-disclo-
sure (six months) and remediation (one year) “are subject to
a reasonableness analysis,” reflecting the DOJ’s understand-
ing that “deals differ and not every transaction is the same.”
As a result, the deadlines could be extended by prosecutors
in certain cases. But, as the DAG noted, the converse is also
true where there is a threat to national security or ongoing or
imminent harm; in these circumstances, companies that have
discovered wrongdoing cannot wait for the deadline to self-
disclose. Nevertheless, as the acting assistant attorney gen-
eral for the Criminal Division (“Acting AAG”) stated infollow-up
remarksin October, “while early reporting is best, self-report-
ing late is always better than never,” and companies that miss
the deadline may still be eligible for “significant benefits,” such
as penalty reductions and the form of the resolution.
Under the Safe Harbor Policy, the presence of aggravat-
ing factors at the acquired entity, such as involvement by
senior management, does not impact the acquiring compa-
ny’s ability to receive a declination; those aggravating factors
may, however, preclude the acquired entity from receiving
otherwise applicable voluntary self-disclosure benefits. The
Safe Harbor Policy does not apply to misconduct that was
otherwise required to be disclosed (e.g., under a non-prose-
cution or deferred prosecution agreement) or to misconduct
already known by the DOJ. Additionally, the DAG noted that
the Safe Harbor Policy will not impact the DOJ’s civil merger
enforcement.
As with other DOJ policies incentivizing voluntary self-disclo-
sure and remediation, the path to receiving the Safe Harbor
Policy’s full benefits is a narrow one that leaves prosecu-
tors with significant discretion. Thus, companies considering
whether to self-disclose under the Safe Harbor Policy must
carefully weigh the pros and cons of self-disclosure.
DOJ ANNOUNCED CHANGES CONCERNING
ITS EVALUATION OF CORPORATE COMPLIANCE
PROGRAMS AND STANDARDS FOR IMPOSING
COMPLIANCE MONITORS
In March, the DOJ announced enhanced compliance programs
guidance (the “Compliance Guidance”). Under DOJ practice,
all DOJ prosecutors must evaluate the adequacy of a com-
pany’s compliance program—both at the time of the offense
and the charging decision—when determining the terms of a
resolution. The updates include additional guidance on use of
personal devices and third-party communication platforms, a
new pilot program to promote corporate compensation incen-
tives and clawbacks, and updated standards for appointing
corporate monitors.
DOJ Provided Additional Guidance Regarding Use
of Personal Devices and Third-Party Communication
Platforms
The new Compliance Guidance requires prosecutors to con-
sider personal device use and communication platforms when
evaluating the adequacy of a company’s compliance pro-
gram. The Compliance Guidance states that corporate poli-
cies should be tailored to the corporation’s risk profile, with
the goal of making business-related data accessible to the
company for preservation and review. To do this, DOJ prosecu-
tors will consider three topics related to company-related data
and communications: (i) the company’s communication chan-
nels; (ii) the company’s policy environment; and (iii) the com-
pany’s risk management. Relevant questions for each topic
are as follows:
• •
Communication Channels. What communication channels
do employees use, and what are the preservation settings
available to each employee in each channel? Has the com-
pany implemented procedures to manage and preserve
electronic communications?
• •
Policies. Does the company have policies in place to
make sure business-related data is preserved and acces-
sible, even on employees’ personal devices used for work-
related matters? Is there a policy governing transferring
data between work and personal devices? Are the com-
pany’s policies communicated to employees and regu-
larly enforced?
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Jones Day White Paper
of disciplinary actions? Is the company monitoring the num-
ber of compliance-related allegations that are substantiated,
the average time to complete a compliance investigation,
and the effectiveness and consistency of disciplinary mea-
sures throughout the organization?
• •
Incentives to Promote Compliant Behavior. The Criminal
Division also updated its evaluation of whether a com-
pany has effective incentives to promote compliant behav-
ior. Considerations here are, among other things, whether
the company had made compliance a means of career
advancement, offered opportunities for management to
serve as a compliance “champion,” or made compliance a
significant metric for management bonuses.
• •
Compensation Incentives and Clawbacks Pilot Program.
The Criminal Division introduced a new Pilot Program
Regarding Compensation Incentives and Clawbacks (“Pilot
Program”). The Pilot Program is effective as of March 15, and
will be in effect for three years. The Program has two parts:
First, each corporate resolution with the Criminal Division will
include a requirement that the company involved implement
compliance-promoting criteria within its compensation and
bonus system. This criteria can include withholding bonuses,
disciplinary measures, and incentives for compliance. Under
the Pilot Program, every Criminal Division resolution now
requires companies to add compliance-promoting criteria to
their compensation systems. These incentive requirements
were included in the DOJ’s two most recent corporate FCPA
resolutions in 2023.
Second, companies that seek to claw back compensation
from corporate wrongdoers will be eligible for fine reductions
in connection with DOJ resolutions. If a company complies
with the Pilot Program procedures, the DOJ will accord a fine
reduction equal to the amount of any compensation that is
recouped within the term of the resolution. A company whose
clawback efforts are ultimately unsuccessful, but pursued in
good faith, can still be eligible for a fine reduction of up to
25% of the amount of sought compensation. In September, for
example, the DOJ credited one company close to $765,000
under the Pilot Program, based on the value of bonuses it with-
held from employees who engaged in suspected wrongdoing
in connection with the conduct under investigation.
• •
Risk Management. Has the company exercised policy rights
to access business-related data? How does the company
exercise control over its communication policies? What are
the consequences for employees who do not comply with
the policies? Does employees’ use of personal devices or
third-party messaging applications impair a company’s
compliance program?
The updated Compliance Guidance reflects the DOJ’s inter-
est in preserving and collecting relevant business information
from company-related data on personal devices, company
issued devices, and third-party messaging platforms. A com-
pany’s failure to provide relevant communications during an
investigation will prompt further questioning from the Criminal
Division and can impact the DOJ’s charging decision.
DOJ Provided Additional Compliance Programs
Guidance Regarding Compensation Incentives,
Clawbacks, and Related Pilot Program
The enhanced Compliance Guidance also provides informa-
tion on how prosecutors will assess whether a company’s
compensation system promotes compliant behavior. The
Compliance Guidance section previously titled “Incentives
and Disciplinary Measures” was changed to “Compensation
Structures and Consequence Management,” and added revi-
sions related to: (i) compensation structures; (ii) disciplinary
measures; and (iii) incentives. Further, a new DOJ pilot pro-
gram will be implemented to promote compensation systems
and compensation clawbacks to remedy violations of law.
• •
Compensation Structures. There is new guidance on how to
evaluate a company’s compensation structure and whether
it fosters a culture of compliance. In this regard, questions
the Criminal Division will consider are: Does the company
have policies to recoup or reduce compensation due to
compliance violations, policy violations, or misconduct?
Has the company enforced clawback provisions? Does the
compensation system tie certain compensation to conduct
consistent with the company’s values?
• •
Disciplinary Measures. The guidance includes additional
questions used to evaluate a company’s disciplinary pro-
gram, such as: Has the company publicized disciplinary
actions internally? Is the company tracking the effectiveness
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DOJ Announced Revised Criteria for the Selection
ofCorporate Compliance Monitors
In March, the AAG separately issued a revised memorandum
on the selection of monitors in Criminal Division matters. The
revised memorandum clarifies four policy positions: (i) moni-
tor selections are and will be made in keeping with the DOJ’s
commitment to diversity, equity, and inclusion; (ii) DOJ pros-
ecutors should not apply presumptions for or against monitors;
(iii) the requirements for monitors apply to a monitor’s entire
team in addition to the lead monitor; and (iv) the cooling-off
period for monitors is now not less than three years, rather
than two years from the date of monitorship termination.
The Criminal Division is directed to impose a monitor where
there is a demonstrated need for, or benefit from, a monitor-
ship. This includes situations where the company’s compliance
program and controls are untested, ineffective, inadequately
resourced, or not fully implemented at the time of a resolution.
If the converse is true, a monitor may not be necessary.
Last year, no new FCPA corporate monitors were imposed. The
chief of the SEC’s FCPA unit stated that he views fewer moni-
torships as a “success story,” since companies today tend to
have more effective anticorruption compliance programs than
in the past.
DOJ Announced Ongoing Use of Data Analytics
toIdentify FCPA Cases
In November, the Acting AAG stated that the DOJ is increasing
the use of data analytics to proactively identify potential FCPA
cases. According to the Acting AAG, the DOJ has invested in
personnel and tools to “harness and analyze” public and non-
public data to “identify potential wrongdoing involving foreign
corruption.” She noted that the DOJ’s approach has gener-
ated successful FCPA investigations and prosecutions and
that the DOJ is “just getting started” in this area. Highlighting
this emphasis on data analytics, in September 2022, the Fraud
Section announced the hiring of a dedicated compliance and
data analytics counsel. Noting that companies have “better
and more immediate access to their own data,” the Acting
AAG stated that she expects companies, as part of an effec-
tive anticorruption compliance program, to adopt a similar
data-driven approach to compliance. As part of its assess-
ment of a company’s compliance program, the DOJ will also
ask what a company has done to analyze its data at the time
of misconduct and resolution.
DOJ ANNOUNCED AN INTERNATIONAL
ANTI-BRIBERY INITIATIVE AND ISSUED TWO
NEW FCPA OPINIONS, AND PRESIDENT BIDEN
SIGNED A LAW ADDRESSING THE DEMAND SIDE
OF BRIBERY
DOJ Announced International Corporate Anti-Bribery
Initiative
In November, the Acting AAG announced a new International
Corporate Anti-Bribery Initiative, which will build on existing
international partnerships and form new ones to facilitate
cross-border cooperation and information-sharing in foreign
bribery investigations. Led by three FCPA Unit prosecutors, the
Acting AAG announced that this Initiative will start by focus-
ing on key threats to financial markets and the rule of law in
regions where it can have the most impact in both coordina-
tion and case generation. The Initiative will look to facilitate
cooperation and enhance information-sharing with foreign
partners by leveraging prosecutors’ particular experience,
expertise, and language skills.
Members of the Initiative will work across the Criminal
Division—including with the DOJ’s Money Laundering and
Asset Recovery Section (“MLARS”), the Office of International
Affairs, the Office of Overseas Prosecutorial Development,
Assistance, and Training, and the International Criminal
Investigative Training Assistance Program—as well as with
other parts of the DOJ, law enforcement partners, and the
State Department. The Initiative’s members will also work with
data experts in Fraud and MLARS to develop proactive leads
in their respective regions and determine how the DOJ can
force multiply and assist foreign authorities in their parallel
investigations.
In October, the Acting AAG highlighted several “success-
ful partnerships” between the DOJ and foreign enforcement
counterparts through cooperating on cases and working
together in several international organizations, such as the
Organization for Economic Cooperation and Development’s
Working Group on Bribery.
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DOJ Issued Two New Opinions
After issuing only two FCPA opinions over the preceding eight
years, the DOJ issued two FCPA opinions in 2023 under its
FCPA opinions procedure.
• •
In FCPA Opinion Release 23-01 (issued on August 14), the
DOJ stated that it would not take an enforcement action
against a U.S.-based child welfare agency that intended
to pay expenses for two government officials from a for-
eign country to visit the United States. The DOJ stated
the payments do not reflect any corrupt intent since the
expenses are reasonable and bona fide expenses directly
related to the promotion, demonstration, or explanation
of the agency’s products or services, which are permitted
under the FCPA.
• • In FCPA Opinion Release 23-02 (issued on October 25), the
DOJ stated that it would not take an enforcement action
against a U.S.-based provider of training events and logis-
tical support that intended to provide stipends to foreign
officials attending training events. The training company
is required to establish training events utilized by multiple
U.S. government entities. As part of these events, the com-
pany must provide stipend payments to foreign officials to
attend these training events. The DOJ stated that the pro-
posed foreign official stipends reflect no corrupt intent by
the company, since the contemplated payments to the for-
eign officials are both called-for and ultimately delivered by
agencies and / or personnel of the U.S. government.
President Biden Enacted Bill Addressing Demand Side
of Foreign Bribery
In December, President Biden signed the Foreign Extortion
Prevention Act (“FEPA”), which targets the “demand side” of
foreign bribery. The FCPA extends only to those who offer or
pay bribes, or the “supply side.” The FEPA received bipartisan
support in Congress.
Although the DOJ has charged government officials for receiv-
ing bribes under related statutes, such as anti-money launder-
ing laws, the FEPA amends the U.S. federal domestic bribery
statute to allow for the criminal prosecution of foreign officials
who seek or receive bribes from U.S. persons or businesses.
FEPA’s definition of “foreign official” is broader than that of the
FCPA. Not only does the statute extend to officials and employ-
ees of foreign governments, but also to any person acting in
an unofficial capacity on behalf of such a government. Such
improper activities must have a sufficient nexus to the United
States to trigger criminal liability. Thus, the FEPA uses the
same jurisdictional categories as the FCPA: the FEPA applies
to demands made to issuers of U.S.-listed securities, to U.S.
domestic concerns (i.e., U.S. citizens, residents, and compa
-
nies), or to any person while in the territory of the United States.
Penalties for violating the statute may include imprisonment of
up to 15 years and a fine of up to $250,000 or three times the
value of the bribe, whichever is greater.
SEC Announced Increase in FCPA Whistleblower Tips
and $279Million FCPA Reward
Under the SEC’s whistleblower program, whistleblowers who
provide the SEC with original, timely, and credible information
that leads to a successful enforcement action are eligible to
receive an award that can range from 10%-30% of the money
collected when monetary sanctions exceed $1million.
In November, the SEC announced that it had received
more than 18,000 whistleblower tips in its fiscal year end-
ing September 30, 2023—50% more than the record setting
year in fiscal year 2022. The SEC also announced that it had
awarded 68 whistleblower awards totaling nearly $600million
in fiscal year 2023, including a $279million award to a whistle-
blower in an FCPA-related case, even though the whistleblower
provided information to the SEC after it had already opened its
investigation. The SEC received 237 FCPA tips during the SEC’s
fiscal year 2023, up from 202 tips the prior fiscal year.
FIGURE 6: Number of Whistleblower Tips to the SEC’s Whistleblower Program, FY 2019–FY 2023
Type of Action FY2019 FY2020 FY2021 FY2022 FY2023
Number of
Whistleblower Tips
5,212 6,911 12,210 12,322 18,354
Number of FCPA
Tips
200 208 258 202 237
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Jones Day White Paper
KEY TAKEAWAYS
For both the DOJ and the SEC, FCPA enforcement remains a
centerpiece of their enforcement agendas. As such, compa-
nies are advised to continue to assess their corruption risks
in light of their business operations and the locations in which
they do business and adopt and implement effective anticor-
ruption compliance programs that take into consideration their
risk profiles, as well as the current enforcement environment in
the United States and other relevant jurisdictions. In particular,
the updates covered in this White Paper underscore that com-
panies should take steps to ensure:
• •
Their compliance policies, procedures, and other internal
controls are appropriately designed and effectively operate
to prevent, detect, investigate, and remediate any potential
issues as they arise.
• •
Their policies and protocols for use of personal devices and
third-party communication platforms, data monitoring tools,
and employee-discipline procedures are up to date based
on recent DOJ guidance.
• •
Their internal reporting and investigation processes for
addressing potential FCPA issues help the company make
prompt and informed determinations as to whether self-
disclosure may be warranted in particular circumstances,
among other important considerations.
13
Jones Day White Paper
AUTHORS
Theodore T. Chung
Chicago
+1.312.269.4234
Henry Klehm III
New York
+1.212.326.3706
Sion Richards
London
+44.20.7039.5139
Justin E. Herdman
Cleveland
+1.216.586.7113
Karen P. Hewitt
San Diego
+1.858.314.1119
Samir Kaushik
Dallas
+1.214.969.5092
Leigh A. Krahenbuhl
Chicago
+1.312.269.1524
Andrew E. Lelling
Boston
+1.617.449.6856
James P. Loonam
New York
+1.212.326.3808
David E. Nahmias
Atlanta / Washington
+1.404.581.8241 / +1.202.879.3493
David Peavler
Dallas / Washington
+1.214.969.3685 / +1.202.879.3499
Cristina Pérez Soto
Miami
+1.305.714.9733
Brian C. Rabbitt
Washington
+1.202.879.3866
Sheila L. Shadmand
Dubai
+971.4.709.8408
Neal J. Stephens
Silicon Valley
+1.650.687.4135
Hank Bond Walther
Washington
+1.202.879.3432
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Jones Day White Paper
ADDITIONAL CONTACTS
UNITED STATES
Bethany K. Biesenthal
Chicago
+1.312.269.4303
Toni-Ann Citera
New York
+1.212.326.3454
Kevin M. Comeau
Washington
+1.202.879.3909
Steven T. Cottreau
Washington
+1.202.879.5572
Stephen Cowen
Detroit
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Roman E. Darmer
Irvine
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Richard H. Deane Jr.
Atlanta
+1.404.581.8502
David J. DiMeglio
Los Angeles
+1.213.243.2551
W. Anders Folk
Minneapolis
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Shirlethia V. Franklin
Washington
+1.202.879.3892
Louis P. Gabel
Detroit
+1.313.230.7955
Fahad A. Habib
San Francisco
+1.415.875.5761
Brian Hershman
Los Angeles
+1.213.243.2445
Adam Hollingsworth
Cleveland
+1.216.586.7235
Jill Keller Hengen
Atlanta
+1.404.581.8956
Kathy Keneally
New York
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James T. Kitchen
Pittsburgh
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Sarah L. Levine
Washington
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Jerry C. Ling
San Francisco
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Rebecca C. Martin
New York
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Jordan M. Matthews
Chicago
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Shireen Matthews
San Diego
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Sidney Smith McClung
Dallas
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Joan E. McKown
Washington
1.202.879.3647
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Jones Day White Paper
Cheryl L. O’Connor
Irvine
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Jeff Rabkin
San Francisco / Silicon Valley
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Lisa M. Ropple
Boston
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Yaakov M. Roth
Washington
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Jeffrey B. Schenk
Silicon Valley
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Ronald W. Sharpe
Washington
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Rasha Gerges Shields
Los Angeles
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Erin Sindberg Porter
Minneapolis
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Evan P. Singer
Dallas
+1.214.969.5021
Edward Patrick Swan Jr.
San Diego
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Jason S. Varnado
Houston
+1.832.239.3694
Alexander J. Wilson
New York
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Kristin K. Zinsmaster
Minneapolis
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EUROPE
Mary Ellen Powers
Washington
+1.202.879.3870
Jérémy Attali
Paris
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Adam R. Brown
London
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Sébastien Champagne
Brussels
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Bénédicte Graulle
Paris
+33.1.56.59.46.75
Michael Mayer
Munich
+49.89.20.60.42.200
Glyn Powell
London
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Thomas Preute
Düsseldorf
+49.211.5406.5569
Paloma Valor
Madrid
+34.91.520.3903
Rick van ‘t Hullenaar
Amsterdam
+31.20.305.4223
© 2024 Jones Day. All rights reserved. Printed in the U.S.A.
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ASIA, AUSTRALIA, AND MIDDLE EAST
Javade Chaudhri
Washington / Dubai
+1.202.879.7651 / +971.4.709.8484
John Emmerig
Sydney
+61.2.8272.0506
Steven W. Fleming
Sydney
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Lillian He
Shanghai
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Sushma Jobanputra
Singapore
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Heather Martin
Dubai
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Hiromitsu Miyakawa
Tok yo
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Daniel Moloney
Melbourne
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Zachary Sharpe
Singapore
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Peter J. Wang
Hong Kong
+852.3189.7211
Chen-Gang Yen
Taipei
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Simon M. Yu
Taipei
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LATIN AMERICA
Luis Riesgo
São Paulo
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Mexico City
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Fernando F. Pastore
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