January 7, 2019 2018 YEAR-END FCPA UPDATE To Our Clients and Friends: 2018 was an extraordinary year in the U.S. government's efforts to combat foreign corruption. The 38 combined FCPA enforcement actions, resulting in $1 billion in corporate fines, alone provide much to discuss. But this is only a part of the story of the year in anti-corruption enforcement, as we also saw an explosion in the pursuit of FCPA-related offenses, continued multi-national enforcement, and a rare appellate decision on the jurisdictional reach of the FCPA, among many other developments. This client update provides an overview of the FCPA and other domestic and international anti- corruption enforcement, litigation, and policy developments from the year 2018, as well as the trends we see from this activity. For more analysis on the year in anti-corruption enforcement as well as challenges in compliance and corporate governance, please join us for one or both of our upcoming complimentary webcast presentations: FCPA Trends in the Emerging Markets of Asia, Russia, Latin America, and Africa on January 8 (to register, click here) and Challenges in Compliance and Corporate Governance on January 29 (to register, click here). FCPA OVERVIEW The FCPA's anti-bribery provisions make it illegal to corruptly offer or provide money or anything else of value to officials of foreign governments, foreign political parties, or public international organizations with the intent to obtain or retain business. These provisions apply to "issuers," "domestic concerns," and those acting on behalf of issuers and domestic concerns, as well as to "any person" who acts while in the territory of the United States. The term "issuer" covers any business entity that is registered under 15 U.S.C. § 78l or that is required to file reports under 15 U.S.C. § 78o(d). In this context, foreign issuers whose American Depository Receipts ("ADRs") or American Depository Shares ("ADSs") are listed on a U.S. exchange are "issuers" for purposes of the FCPA. The term "domestic concern" is even broader and includes any U.S. citizen, national, or resident, as well as any business entity that is organized under the laws of a U.S. state or that has its principal place of business in the United States. In addition to the anti-bribery provisions, the FCPA also has "accounting provisions" that apply to issuers and those acting on their behalf. First, there is the books-and-records provision, which requires issuers to make and keep accurate books, records, and accounts that, in reasonable detail, accurately and fairly reflect the issuer's transactions and disposition of assets. Second, the FCPA's internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. Prosecutors and regulators frequently invoke these latter two sections when they cannot establish the elements for an anti-bribery prosecution or as a mechanism for compromise in settlement negotiations. Because there is no requirement that a false record or deficient control be linked to an improper payment, even a payment that does not constitute a violation of the anti- bribery provisions can lead to prosecution under the accounting provisions if inaccurately recorded or attributable to an internal controls deficiency. International corruption also may implicate other U.S. criminal laws. Increasingly in recent years, prosecutors from the FCPA Unit of the U.S. Department of Justice ("DOJ") have begun charging non- FCPA crimes such as money laundering, mail and wire fraud, Travel Act violations, tax violations, and even false statements, in addition to or instead of FCPA charges. Perhaps most prevalent amongst these "FCPA-related" charges is money laundering—a generic term used as shorthand for several statutory provisions that together criminalize the concealment or transfer of proceeds from certain "specified unlawful activities," including corruption under the laws of foreign nations, through the U.S. banking system. DOJ frequently deploys the money laundering statutes to charge "foreign officials" who are not themselves subject to the FCPA. It is thus increasingly commonplace for DOJ to charge the alleged giver of a corrupt payment with FCPA violations and the alleged recipient with money laundering violations. FCPA AND FCPA-RELATED ENFORCEMENT STATISTICS The below table and graph detail the number of FCPA enforcement actions initiated by DOJ and the Securities and Exchange Commission ("SEC"), the statute's dual enforcers, during the past 10 years. 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC 26 14 48 26 23 25 11 12 19 8 17 9 10 10 21 32 29 10 21 17 2 Viewed from this perspective, 2018 was undoubtedly a productive year, and enforcement trends must have a multi-year lens. When we see our counterparts in the hallways of the Bond Building, we see plenty of evidence of a continued frenetic pace of activity within the FCPA Unit. To illustrate this further, one need only look at a slightly different set of statistics that captures the activity of DOJ's FCPA Unit rather than the number of cases it brings under a particular statute. As can be seen from the below table and graph, which includes non-FCPA charges brought by the FCPA Unit in international corruption investigations, 2018 was the second most prolific year in the history of foreign anti-corruption enforcement by the U.S. government. 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC DOJ SEC 28 14 51 26 24 25 12 12 21 8 19 9 12 10 27 32 36 10 47 17 3 2018 FCPA + FCPA-RELATED ENFORCEMENT TRENDS In each of our year-end FCPA updates, we seek not only to report on the year's FCPA enforcement actions but also to identify and synthesize the trends that stem from these actions. For 2018, seven key enforcement trends stand out from the rest: 1. DOJ brings "FCPA-related" charges against individuals at an unprecedented pace; 2. Venezuela in the spotlight; 3. Continuing scrutiny of the financial services industry; 4. Continuing reverberations from Brazil's "Operation Car Wash"; 5. Public company executives, don't forget about the SEC . ; 6. The SEC continues to assert aggressive theories in non-precedential settlements; and 7. DOJ issues four declinations under the FCPA Corporate Enforcement Policy. 4 DOJ Brings "FCPA-Related" Charges at an Unprecedented Pace As discussed above, DOJ has in the past several years fundamentally changed its approach to international corruption cases. A phenomenon we first reported in our 2009 Year-End FCPA Update, when it was but a trickle, has now become a full-fledged river. In 2018, DOJ's FCPA Unit brought 26 non-FCPA criminal cases on top of 21 FCPA enforcement actions. This is a dramatic upswing in non- FCPA prosecutions brought by the FCPA Unit, on par with the output of the prior decade combined. Accounting most significantly for this trend is DOJ's aggressive deployment of the money laundering statute, in particular against officials of foreign governments. For decades, it has been established law that "foreign officials"—a necessary participant in at least completed FCPA bribery schemes—are nonetheless not covered by the anti-bribery provisions. And for many years that meant that DOJ focused its criminal enforcement efforts on the "supply side" of bribery. But starting several years ago, and then exploding in the numbers shown this year, DOJ has attacked the "demand side" every bit as aggressively, principally by charging foreign official bribe recipients (though not sitting, high-level officials) with money laundering. The most prolific example would be those charged in connection with the Venezuelan bribery schemes described in the following section, although by no means is this the only example. In addition to turning the officials of foreign sovereigns into U.S. defendants, another significant characteristic of DOJ's money laundering explosion is the potential for theories of U.S. jurisdiction that exceed even the FCPA in their aggressiveness. For an FCPA bribery charge, the defendant should be a U.S. national, a U.S. company, an employee or agent of an issuer or U.S. company, or a foreign party alleged to have taken an action on U.S. soil. But for money laundering jurisdiction, DOJ has for some time taken the position that the mere use of U.S. correspondent bank accounts—through which the vast majority of U.S. dollar transactions worldwide are routed—is sufficient to vest the United States with jurisdiction to prosecute. Thus, if a wire for a corrupt payment in U.S. dollars is made from an account in Foreign Country A to an account in Foreign Country B, but routes instantaneously through a bank account in a U.S. dollar-denominated account in New York, DOJ may assert it has jurisdiction over that transaction even if the parties and business at issue are wholly foreign. Examples of this aggressive theory on display in 2018 can be seen in the Chi Ping Patrick Ho and Azat Martirossian prosecutions discussed below, among others. The law on this issue is at this point unclear and subject to multiple statutory and due process defenses—we expect this aggressive assertion of extra-U.S. jurisdiction to be a frequent source of litigation in the years to come. One final point of note with respect to the DOJ FCPA Unit's focus on money laundering charges is that increasingly FCPA Unit attorneys are teaming up with attorneys from the Money Laundering and Asset Recovery Section ("MLARS").