On November 17, 2020, the Working Group on Bribery of the Organization for Economic Co-operation and Development (OECD Working Group), issued its Phase 4 Report (the Report) concerning enforcement by the US of the Foreign Corrupt Practices Act.
The Report, which was issued following a year-long review by the OECD Working Group, applauded the “sustained and outstanding commitment” to FCPA enforcement by the US. The Report noted that—since the OECD Working Group issued its Phase 3 Report in 2010—average annual enforcement actions of the FCPA and related offenses increased from 18.75 per year to 37.7 per year. In that regard, between September 2010 and July 2019, the US brought 394 separate FCPA-related cases, resulting in convictions or sanctions against 174 companies and 115 individuals for foreign bribery and related offenses. The OECD Working Group credited this increase in bribery enforcement to enhancements in expertise and resources, willingness by the SEC and DOJ to tackle a broad range of bribery offenses, the effective use of non-trial resolutions, and the development of policies to encourage companies’ cooperation with law enforcement.
The Report also highlighted the critical role that whistleblowers play in detecting foreign bribery, and the encouragement by the US of whistleblowers through the 2010 enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which offered multi-faceted protections to qualified whistleblowers. However, the Report noted that federal whistleblower protections do not “cover all whistleblowers who may report potential foreign bribery violations,” and encouraged the US to (i) consider ways to increase protections for whistleblowers “who report suspected acts of foreign bribery by non-issuers” and (ii) “enhance guidance about the protections available to whistleblowers who report suspected acts of foreign bribery depending on the competent enforcement agency to which they report.”
The OECD Working Group is made up of representatives from 44 countries who meet four times per year to discuss global efforts to fight the bribery of foreign officials, and who issue reports to evaluate and advise countries on their individual efforts to combat foreign bribery.