More FCPA Resolutions Likely in Coming Months, DOJ Official Says

The U.S. is likely to see several more resolutions under the Foreign Corrupt Practices Act in the coming months, Acting Principal Deputy Assistant Attorney General Nicole Argentieri said at an annual FCPA conference this week. Argentieri made the remark after highlighting FCPA enforcement action taken in 2022. These moves included three corporate FCPA resolutions, involving Stericycle, Glencore and GOL Linhas Airlines, and one declination under the Corporate Enforcement Policy with disgorgement, involving Jardine Lloyd Thompson Group Holdings (JLT).

Each one of these cases "illustrate the breadth of our corporate FCPA enforcement," given that each company is involved in a different industry and engaged in bribery schemes of varying scope and scale, Argentieri said. She said these cases also reveal DOJ's competence in prosecuting regional schemes, global schemes to obtain and retain business, bribes for legislative advantages and bribes to government officials to secure contracts with state-run insurance funds.

Argentieri then went through each FCPA enforcement action to show that DOJ tailors "the form of resolution, the assessment of penalties, and the decision of whether or not to impose a monitor to the facts at hand." For instance, in the Stericycle case, DOJ entered into a deferred prosecution agreement with the waste management company to settle charges it paid over $10 million in bribes to Brazilian, Mexican and Argentinian officials. Stericyle agreed to pay over $80 million to settle the investigations by DOJ, the SEC and Brazilian authorities.

"As this resolution demonstrates, the department will not limit itself to large payments to senior government officials," Argentieri said. "Rather, we will also continue to prosecute smaller, ubiquitous payments to lower-level government officials. While larger numbers may attract more headlines, these systematic and pervasive payments are incredibly important to prosecute even if they’re relatively smaller."

Argentieri further explained why a monitor was not assigned in the GOL case -- an instance where the airline paid over $41 million to settle bribery investigations in the U.S. and Brazil over bribes paid to ensure the passage of two laws that benefitted the company. "At the time of the resolution, the company had redesigned its whole anti-corruption compliance program," the acting deputy assistant AG said. Beyond just its commitments, GOL showed via testing that its program was effective and well resourced. The airline's CEO and CCO also will certify at the end of the DPA term that its compliance program is "reasonably designed" to detect and prevent FCPA violations, Argentieri said.

DOJ also has brought various charges against individuals, including two former Ecuadorian and Bolivian officials, three businessmen involved in a state insurance company in Ecuador, two former Venezuelan prosecutors and two former coal company executives in Egypt. Argentieri wrapped up her remarks by discussing policy changes DOJ made in 2022, including incentives to boost voluntary self-disclosures, which can help a corporation skirt a guilty plea, she said.

"Under department policy -- including the recent DAG memos and announcement by our AAG in mid-September -- a history of misconduct will not mean a guilty plea for a company that self-discloses, cooperates, and remediates unless other aggravating factors -- aside from recidivism-- are present," she said. "As the AAG explained, the aggravating factors that we will consider in the Criminal Division under the new policy can include, but are not limited to, involvement by executive management in the misconduct, significant profit to the company from the wrongdoing, or pervasive or egregious misconduct. Recidivism is purposefully not one of these aggravating factors."