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Global Anti-Bribery Year-In-Review: 2020 Developments and Predictions for 2021

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Global Anti-Bribery Year-In-Review: 2020 Developments and Predictions for 2021 Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 January 28, 2021 2020 ENFORCEMENT TRENDS AND KEY DEVELOPMENTS A. Introduction As was true in many areas of the law, Foreign Corrupt Practices Act (FCPA) enforcement in 2020— and anti-corruption enforcement more generally—was affected by the COVID-19 pandemic, but perhaps not as much as was initially expected. Although the number of Department of Justice (DOJ) and Securities and Exchange Commission (SEC) enforcement actions was down in 2020 compared to recent years, the DOJ and SEC both remained active in enforcing the FCPA, bringing major cases that set new records and issuing new updates to longstanding FCPA guidance. Below are four key developments from 2020: 1. Two New Cases Top the Penalty Charts: The year started with the Airbus case, which set a new record at the time for FCPA penalties. The resolution involved coordination by the United States with French and UK authorities, and resulted in $2.1 billion in penalties.1 In October 2020, however, the Airbus settlement was eclipsed by another record settlement, this time with The Goldman Sachs Group, Inc., which agreed to $3.3 billion in penalties imposed by the DOJ and SEC, becoming the largest combined FCPA penalty on record. This case also involved cooperation by US authorities with a number of foreign law enforcement agencies.2 2. Record-Breaking Year in Overall Penalties: As a result of these two resolutions, the year 2020 became a record-breaking one for penalties, even with a decrease in the number of 1 In total, Airbus agreed to pay $3.9 billion in global penalties to resolve charges relating to the foreign bribery case, as well as charges brought by the US authorities for violations of the International Traffic in Arms Regulations (ITAR). US Department of Justice Press Release No. 20-114: Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and ITAR Case (Jan. 31, 2020). 2 In July 2020, Goldman Sachs also settled charges with Malaysian prosecutors related to the conduct for $2.5 billion. The Goldman Sachs Group, Inc., Current Report (Form 8-K) (July 24, 2020), https://sec.report/Document/0001193125-20-198162/. In total, Goldman Sachs agreed to pay $5.1 billion to settle governmental and regulatory settlements relating to the conduct. The Goldman Sachs Group, Inc., Current Report (Form 8-K) (Oct. 22, 2020), https://www.goldmansachs.com/investor- relations/financials/current/8k/8k-10-22-20.pdf. WilmerHale | 1 Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 enforcement actions, suggesting that US authorities continue to focus on major investigations with large penalties. 3. Updated Enforcement Guidance: The DOJ and SEC also continued to provide guidance to the public on compliance with the FCPA. Specifically, US authorities updated the DOJ’s and SEC’s FCPA Resource Guide (Resource Guide) and the DOJ’s Evaluation of Corporate Compliance Programs Guidance (Compliance Guidance). 4. Key Legal Rulings: In 2020, courts issued two important FCPA-related legal decisions. First, in June 2020, the US Supreme Court held in Liu v. SEC that the disgorgement remedy must be directly tied to ill-gotten gains, as it is supposed to benefit victims. It remains to be seen how this ruling will be applied in FCPA cases. Congress also acted in connection with SEC disgorgement power—passing legislation to expand the SEC’s ability to collect disgorgement for conduct within the past ten years, overruling in some respects the Supreme Court’s 2017 decision in Kokesh v. SEC. Second, in December 2020, the US Court of Appeals for the Second Circuit affirmed the district court opinion in United States v. Ho, holding, among other things, that: (i) an individual can be charged under both the 78dd-2 and 78dd-3 provisions of the FCPA, i.e., that these provisions are not necessarily mutually exclusive; (ii) a violation of 78dd-3 can be specified unlawful activity in connection with a money laundering charge; and (iii) that money transferred into and out of a correspondent account in the United States was sufficient to confer jurisdiction under the relevant money laundering statute even where “the United States is neither the point of origination nor the end destination for the money, but is instead just an intermediate stop along the way.”3 As discussed below, this expansive holding creates the possibility of an increase in the US authorities’ use of the money laundering statutes in lieu of or alongside FCPA charges. The end of the Trump Administration also provides an occasion to look back on FCPA enforcement over the past four years. Despite predictions that the Administration would radically scale back anti- bribery enforcement, particularly in light of negative comments Donald Trump made about the FCPA before he was elected president,4 the Trump Administration’s approach to FCPA enforcement was largely business as usual, continuing prior trends of high levels of enforcement activity and large corporate penalties. The lesson is that, as has been true over the past several administrations, anti-corruption law enforcement in the United States is a mostly non-partisan affair. And, perhaps just as importantly, that enforcement is no longer just a US affair, given the continued momentum in international anti-corruption law enforcement. B. 2020 Enforcement Trends and Priorities 1. Level of Enforcement Activity in 2020 The quantity of FCPA enforcement actions decreased during 2020, likely due at least in part to the COVID-19 pandemic and the attendant logistical difficulties posed in overseas investigations. 3 United States v. Ho, No. 19-761, 2020 WL 7702576, at *8 (2d. Cir. Dec. 29, 2020). 4 Jeanna Smialek, “Trump Tried to Kill Anti-Bribery Rule He Deemed ‘Unfair,’ New Book Alleges,” NEW YORK TIMES (Jan. 15, 2020), https://www.nytimes.com/2020/01/15/business/economy/trump-bribery-law.html. WilmerHale | 2 Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 Despite this, 2020 was far and away the biggest year on record for FCPA financial penalties, with total penalties more than double those of 2019, which was itself a record high. While monetary penalties imposed by US authorities on corporations for FCPA-related conduct5 totaled $2.9 billion in 2019, corporate monetary penalties in 2020 totaled $6.4 billion. And this does not include the billions of dollars that companies agreed to pay to foreign authorities for violations of those countries’ anti-bribery laws, penalties to the US Department of State for violations of the International Traffic in Arms Regulation (ITAR), or penalties imposed by the Commodity Futures Trading Commission (CFTC) for bribery-related conduct.6 That said, because several of the largest settlements in 2020 involved large credits for payments to foreign regulators, the 2020 settlements resulted in US authorities actually collecting approximately $2.8 billion for FCPA financial penalties—less than half of the total penalties imposed. In addition to being significantly lower than the total $6.4 billion in penalties, this figure is only slightly higher than the $2.65 billion in penalties collected by US authorities in 2019 in connection with FCPA resolutions. 5 To calculate total monetary penalties imposed in FCPA-related actions against companies, we counted the amounts set out in resolution papers that a settling party could be liable to pay to US enforcement agencies, even if those penalties were ultimately offset by payments to other entities (e.g., foreign authorities). We believe that the total penalty number, regardless of offsets, most accurately represents the scope of FCPA liability because US authorities retained the right to collect those amounts. Furthermore, even if in some cases settling parties agreed to larger penalties based on the understanding that there would be an offset, payments made to non-US government agencies can still be traced back to FCPA-related conduct to some degree. In other words, it is unlikely that foreign authorities would have received the same amount without US enforcement activity or the specter of FCPA liability. It is of course impossible to determine how much of a global resolution would have occurred without FCPA enforcement. But because some of those payments are at least partly attributable to FCPA enforcement, we have included them to provide a complete picture of overall FCPA-related liability. 6 Deferred Prosecution Agreement, United States v. Airbus SE, No. 20-CR-00021, ¶ 8 (D.D.C. Jan. 31, 2020); US Department of Justice Press Release No. 20-114: Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and ITAR Case (Jan. 31, 2020); WilmerHale, Airbus to Pay Record $4 Billion to Settle Global Bribery Scheme (Feb. 5, 2020), https://www.wilmerhale.com/en/insights/client-alerts/20200205- airbus-to-pay-record-4-billion-to-settle-global-bribery-scheme; US Department of Justice Press Release No. 20- 1310: Vitol Inc. Agrees to Pay over $135 Million to Resolve Foreign Bribery Case (Dec. 3, 2020). WilmerHale | 3 Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 Total FCPA Penalty Amounts Paid7 to US and Foreign Authorities8 Amounts Paid to US $2,785,165,056 Authorities $3,227,739,309 Amounts Credited to Foreign Authorities Large resolutions against a small number of companies continued to account for most of the FCPA penalties imposed by US authorities, continuing a trend from recent years. Two resolutions—the $3.3 billion Goldman Sachs settlement and the $2.1 billion Airbus settlement—together constituted 84% of the $6.4 billion total penalties noted above. Similarly, in 2019, the combined Telefonaktiebolaget LM Ericsson and Mobile Telesystems PJSC settlements accounted for 66% of corporate monetary penalties for that year, and the $1.8 billion Petróleo Brasileiro S.A.
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