The Increased Prosecution of Individuals Under the FCPA: Trends and Implications

• 1.13.2010

In the past two years, there has been a spike in the number of Foreign Corrupt Practices Act (FCPA) cases brought against individuals, and this increase has not been unintentional. The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have marshaled additional resources for FCPA prosecutions and have made clear that they intend to deploy those resources towards individuals as well as companies.

In an article originally published in Bloomberg Risk and Compliance Law Report, WilmerHale Litigation Partners Roger M. Witten, Kimberly A. Parker and Jay Holtmeier and Counsel Lillian H. Potter analyze the recent increase in the prosecution of individuals in FCPA cases, identify trends among these cases, and examine the fact patterns in the most recent cases.

“Prosecuting individuals is a major priority of the Department of Justice and the Securities and Exchange Commission right now,” says Witten. “There have been several high-profile trials of individuals on FCPA charges this year, all of which have resulted in convictions, and new indictments of individuals are announced regularly.”

Recent comments by DOJ Criminal Division Chief Lanny A. Breuer regarding prosecutions of FCPA violations by the pharmaceutical industry reflect the DOJ’s increased focus on individual prosecutions: “[Our efforts] will mean investigation and, if warranted, prosecution of corporations to be sure, but also investigation and prosecution of senior executives. Effective deterrence requires no less. Indeed, we firmly believe that for our enforcement efforts to have real deterrent effect, culpable individuals must be prosecuted and go to jail where the facts and the law warrant.”

“Corporations and their executives need to be aware of the government’s increased focus on individuals,” says Witten.

Read the full text of the article: The Increased Prosecution of Individuals Under the FCPA: Trends and Implications.

WilmerHale has an active FCPA practice. The firm has been involved in FCPA issues dating back to the enactment of the statute and the government investigations that triggered its passage. We counsel companies across a wide variety of industries on how to develop effective anticorruption compliance programs, how to avoid such problems and how to deal with potential problems when they arise. We also frequently represent companies and individuals in DOJ and SEC investigations into FCPA matters, perform internal corporate investigations and conduct anticorruption risk reviews. Our lawyers have written the leading treatise in the field, Complying with the Foreign Corrupt Practices Act.