The FCPA enforcement picture in 2015 will be dynamic. Recent blockbuster actions like the DOJ’s record-breaking $772 million settlement with Alstom and aggressive statements of late by FCPA enforcement officials foreshadow a 2015 in which the U.S. government’s approach to transnational bribery will be anything but relaxed. In particular, companies and business people should watch for the following trends:
More Actions. Enforcement officials make clear that companies should expect continued prioritization of FCPA cases. Senior Deputy Chief of the DOJ Criminal Division’s Fraud Section, James Koukios, said in October 2014, “It’s fair to assume that the penalty amounts are not going to be going down,” and that there are a “bunch” of FCPA cases in the pipeline. He said that the DOJ has “more prosecutors and more resources than we’ve ever had before” dedicated to FCPA and that the DOJ’s prosecutions will remain “vibrant, aggressive and appropriate.” Regional enforcement officials echo Mr. Koukios’s statements. In October 2014, SEC and DOJ officials based in Miami described a “good inventory” of cases to come involving Latin America, representing “about every type of industry that one could imagine.”
Individuals Under a Microscope. Since 2009, U.S. authorities have convicted more than 50 individuals for FCPA and FCPA-related crimes, like conspiracy and money laundering. The DOJ’s FCPA Unit Chief Patrick Stokes recently described the agency as “very focused” on prosecuting individuals going forward. Of particular note, in September 2014, the DOJ Criminal Division’s Acting Principal Deputy Assistant Attorney General Marshall Miller stated that companies seeking to cooperate with the government should be prepared to give the government names of individual wrongdoers: “If you want full cooperation credit, make your extensive efforts to secure evidence of individual culpability the first thing you talk about when you walk in the door to make your presentation.”
Aggressive Investigations. The DOJ and SEC, with the assistance of the FBI, will increasingly rely on wiretaps, body wires, border searches, physical surveillance and other aggressive tools to investigate foreign bribery cases. These tactics were used in the recent FCPA investigations of BizJet International executives involving improper payments in Mexico and PetroTiger executives who oversaw oil exploration and production services contracts in Colombia. The DOJ’s Miller stated in late 2014, “Such proactive investigative tools—previously used primarily in organized crime and drug cases—have become a staple in our white-collar investigations… I can promise you we will continue to use them.” The DOJ’s Stokes offered a similarly stern warning: “Corporate executives should wonder who is listening in on their calls and conversations.” The DOJ and SEC are also enlisting the help of a host of other government agencies in their investigations, including the Internal Revenue Service, Homeland Security and the Department of Treasury.
Multilateral Cooperation. U.S. enforcers describe a growing responsiveness from and cooperation with their counterparts throughout the world. Law enforcement officials in different jurisdictions share tips with one another. The SEC and FBI periodically host training conferences for investigators from abroad. The SEC’s Chief FCPA enforcer Kara Brockmeyer describes “more cooks in the kitchen” during investigations. Miller explains, “We’re frequently working in parallel with foreign prosecutorial law enforcement and regulatory partners. And through those relationships that we’ve developed with our foreign partners, we are able to ensure that the fact multiple jurisdictions are engaging in parallel investigations doesn’t somehow render the investigation either unfair in some way or slow it down by having conflicting requests.”
Other Jurisdictions. Perhaps more relevant for companies and individuals subject to the FCPA is the growing attention to bribery investigations by authorities outside of the United States. They are targeting individuals, as evidenced by Brazil’s focus on former executives of Embraer and Petrobras and Canada’s investigation of former employees of the engineering firm SNC-Lavalin. They are reaching blockbuster settlements with companies, such as the recent US$240 million enforcement action by Dutch authorities against SBM Offshore for bribery offenses in Brazil, Angola and Equatorial Guinea. They are pursuing high-profile targets, such as the ongoing investigation by the UK’s Serious Fraud Office into Rolls-Royce’s activities in China and Indonesia.
Whichever direction you look, it is fair to say that international anti-corruption enforcement will continue to be a hard reality for companies and business people engaged in the global market.
The opinions expressed in this post are those of the author in his or her individual capacity and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author`s employers, other contributors, FCPAméricas or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.
Matteson Ellis serves as Special Counsel to the FCPA and International Anti-Corruption practice group of Miller & Chevalier in Washington, DC. He is also founder and principal of Matteson Ellis Law PLLC, a law firm focusing on FCPA compliance and enforcement. He has extensive experience in a broad range of international anti-corruption areas. Previously, he worked with the anti-corruption and anti-fraud investigations and sanctions proceedings unit at The World Bank.
Mr. Ellis has helped build compliance programs associated with some of the largest FCPA settlements to date; performed internal investigations in more than 20 countries throughout the Americas, Asia, Europe and Africa considered “high corruption risk” by international monitoring organizations; investigated fraud and corruption and supported administrative sanctions and debarment proceedings for The World Bank and The Inter-American Development Bank; and is fluent in Spanish and Portuguese.
Mr. Ellis focuses particularly on the Americas, having spent several years in the region working for a Fortune 50 multinational corporation and a government ethics watchdog group. He regularly speaks on corruption matters throughout the region and is editor of the FCPAméricas Blog.
He has worked with every facet of FCPA enforcement and compliance, including legal analysis, internal investigations, third party due diligence, transactional due diligence, anti-corruption policy drafting, compliance training, compliance audits, corruption risk assessments, voluntary disclosures to the U.S. government and resolutions with the U.S. government. He has conducted anti-corruption enforcement and compliance work in the following sectors: agriculture, construction, defense, energy/oil and gas, engineering, financial services, medical devices, mining, pharmaceuticals, gaming, roads/infrastructure and technology.
Mr. Ellis received his law degree, cum laude, from Georgetown University Law Center, his masters in foreign affairs from Georgetown’s School of Foreign Service, and his B.A. from Dartmouth College. He co-founded and serves as chairman of the board of 
