In January 2015, we published our bi-annual Recent Trends and Patterns in FCPA Enforcement report, part of our FCPA Digest, which together provide an insightful analysis of recent enforcement trends and patterns in the US, the UK and elsewhere, as well as helpful guidance on emerging best practices in FCPA and global anti-corruption compliance programs.

The 2014 FCPA enforcement year has been interesting to say the least. While the US Department of Justice (the "DOJ") and SEC continue to prosecute individuals at a relatively steady pace, the big news concerns the government's pursuit of corporate defendants. With a surge of large corporate enforcement actions towards the end of the year, 2014 has generated the second highest corporate penalty total in history despite the fact that the total number of corporate enforcement actions has remained roughly the same as 2013. As a result, average corporate penalties continue to steadily increase, reaching their highest levels ever in 2014.

Among the highlights from 2014 are:

  • a series of high profile enforcement actions have resulted in total corporate penalties of $1,566 million, the second highest on record;
  • average corporate fines and penalties of $156.6 million – by all measures the highest average in history;
  • the DOJ's prosecution of Alstom resulted in the largest FCPA-related criminal fine in history of $772 million – well over the $450 million criminal fine in Siemens;
  • the DOJ's use of plea agreements and the SEC's use of administrative proceedings has increased over the use of deferred prosecution and non-prosecution agreements;
  • the Eleventh Circuit issued its opinion in United States v. Esquenazi, largely supporting the government's view regarding the definition of "instrumentality" under the FCPA;
  • recent paper victories by the SEC could be perceived as setbacks in the SEC's actions against individual defendants; and
  • the SEC's 2014 enforcement actions reflect a number of concerning practices including the continued pursuit of a theory of strict liability against parent corporations for acts of corporate subsidiaries and an interpretation of the "obtaining or retaining business" element of FCPA that contradicts United States v. Kay.

Our January 2015 report is available at: http://www.shearman.com/en/newsinsights/publications/2015/01/fcpa-digest.

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