FCPA Enforcement Actions: “O DOJ, SEC, Wherefore Art Thou, DOJ & SEC?”

Michael Volkov
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The Volkov Law Group

FCPA practitioners, In-house counsel and compliance officers, and yes, even the FCPA Paparazzi, have been patient enough. As the saying goes, talk is cheap.  It is action that counts.

We have written often enough about the coming storm – the Biden Administration’s long-anticipated ramp up of white collar enforcement, and FCPA actions in particular.  The groundwork was set – the National Security Memorandum raising the global fight against anti-corruption to a national security interest.  The Biden Administration has had long enough to get their act in gear, review of the current cases for resolution and put their new stamp on the FCPA enforcement actions.

The SEC has promised aggressive enforcement as well – Gary Gensler, the new Chairperson, has made several statements reflecting the SEC’s planned, new aggressive enforcement initiative.

But what do we hear? – Crickets. Yes, Crickets.

The Biden DOJ can no longer justify its inaction by claiming the normal delay from an Administration transition, even if this transition was subject to extreme delay and obstruction.  Time is up – time to play your cards.

The Biden DOJ has one other possible excuse, but it may be a little too cynical on my part.  Maybe I am just getting my hopes up, only to be dashed in the weeks to follow.

The inter-agency process for announcement of a comprehensive government-wide anti-corruption initiative is expected to be completed by early December 2021 – could a new, slew of FCPA enforcement actions be announced as “proof” of this Administrations commitment to a new, national security motivated anti-corruption initiative?

You can tell that my thinking has moved now to the cynical side.  With my tongue-in-cheek rant finished , I feel back to my objective self.  In reality, I would like to think we are in the eye of a hurricane that is about to lash out with a coordinated, global, anti-corruption initiative.

We know that DOJ and the SEC have a significant caseload of FCPA enforcement actions.  If you track corporate disclosures and other sources of information, FCPA enforcement and investigations is robust and will continue.

It is also safe to assume that the Biden Administration’s commitment to a new, aggressive approach to anti-corruption enforcement will be significant.  Lisa Monaco’s recent speech announcing new white collar initiatives is a specific warning to corporations, business leaders, lawyers and compliance professionals.  The coming perfect storm of FCPA enforcement will be strong and include major blockbuster cases – trust me, I know they are coming.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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