In a lengthy report made public on October 20, 2010, the Organization for Economic Cooperation and Development (OECD) concluded that the United States has met, and in many respects exceeded, most of its obligations under the OECD Anti-Bribery Convention (pdf). The report, which follows a prior evaluation in 2002 and a follow-up report in 2005, is based on the OECD’s review of laws, regulations and other material supplied by the Government, as well as an on-site visit with representatives from the DOJ, SEC, Department of State, FBI, IRS and Office of Special Counsel. In addition, the OECD met with 29 private sector representatives, including representatives from 19 companies, 3 business associations, and 7 accounting and auditing firms.
The report concludes that “[v]igorous enforcement and public penalties, alongside increased private sector engagement, has encouraged the establishment of robust compliance programmes and measures, particularly in large companies, which are verified by the accounting and auditing profession and monitored by senior management.” The report, which provides a useful summary of enforcement trends of the Foreign Corrupt Practices Act (FCPA), as well as other laws that can be used by the Government to combat bribery in international business transactions, provides good reason for companies to establish robust compliance programs:
- From 1998 to September 10, 2010, “50 individuals and 28 companies have been held criminally convicted of foreign bribery, while 69 individuals and companies have been held civilly liable” and 26 have been sanctioned under non-prosecution or deferred prosecution agreements.
- Since 2003, 23 companies have been sanctioned for more than $10 million.
- Since 2004, over $1 billion worth of proceeds have been recovered through disgorgement actions. Already in 2010, the SEC has obtained over $404 million in disgorgement, interest and civil penalties from 13 companies and 8 individuals.
The OECD recognized that these trends “are expected to increase in the near future” because of “new initiatives” (including specialized units within the DOJ, FBI and SEC) and increased emphasis of prosecuting individuals in addition to companies. Indeed, the OECD reported that presently there are more than 150 criminal and 80 civil FCPA investigations, many of which are parallel. While the DOJ continues to rely on voluntary disclosures as a significant source (although not a majority) of FCPA investigations, other sources include: industry-wide sweeps, anonymous whistleblower reports, and referrals from other U.S. agencies, international financial institutions and foreign countries.
In sum, using various tools “[i]t is beyond dispute that the United States treats the bribery of foreign public officials as a high priority, and that … has translated into vigorous law enforcement.” Assistant Attorney General for the Criminal Division, Lanny Breuer, echoed that sentiment following the release of the report, saying the “United States has risen to the forefront of enhanced global efforts to combat foreign bribery, including through our vigorous enforcement of the FCPA.”