This recent post focused on SEC individual FCPA actions in 2024 and historically.

Today’s post highlights various facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2024 and historically.

The key word above is FCPA offenses.

Some in the FCPA space include enforcement actions containing non-FCPA charges (often money laundering charges against alleged “foreign officials” or with increasing frequency money laundering charges against alleged bribe payors – see here) related to an FCPA enforcement action as an individual FCPA enforcement action. While it is fine to track such enforcement actions, calling them FCPA enforcement actions is factually false. (In fact, as highlighted in this prior post, approximately 55% of enforcement actions in recent years on the DOJ’s FCPA website are not actual FCPA enforcement actions).

Compared to corporate FCPA enforcement actions, tracking individual FCPA enforcement actions can be difficult because the DOJ does not publicly announce every individual enforcement action and/or certain matters are filed under seal and announced at a later date (sometimes in a different year).

As highlighted numerous times on FCPA Professor, the DOJ frequently talks about the importance of individual criminal prosecutions.

In 2024, Principal Associate Deputy Attorney General Marshall Miller stated:

“To be clear, when it comes to corporate criminal enforcement, Job #1 is individual accountability. Corporate crime hurts real people — and corporate crimes are committed by real people. So the Department’s top priority in corporate criminal enforcement is holding individuals accountable.”

In 2023, Principal Associate Deputy AG Marshall Miller stated:

“The goal of [DOJ voluntary disclosure] policies is to identify misconduct at the earliest possible opportunity. That way, we can put a stop to the conduct and take swift and effective action against individual wrongdoers – enhancing the individual accountability that is our top priority in fighting white-collar crime.”

Likewise, in 2023 Acting Assistant Attorney General Nicole Argentieri stated that the DOJ has a “department-wide goal of holding individual wrongdoers accountable.”

In 2022, Attorney General Merrick Garland stated:

“I have made it clear that the Department’s first priority in corporate criminal cases is to prosecute the individuals who commit and profit from corporate malfeasance. It is our first priority because corporations only act through individuals. It is our first priority because penalties imposed on individual wrongdoers are felt by those wrongdoers, rather than by shareholders or inanimate organizations. It is our first priority because – as everyone who has counseled individual corporate officers know – the prospect of personal liability has an uncanny ability to focus the mind. That prospect is the best deterrent to corporate crime. And deterrence – after all – is what we are after. But most important, the prosecution of individuals is our first priority because it is essential to Americans’ trust in the rule of law.”

In 2021, DOJ officials stated:

“Accountability starts with the individuals responsible for criminal conduct. Attorney General Garland has made clear it is unambiguously this department’s first priority in corporate criminal matters to prosecute the individuals who commit and profit from corporate malfeasance.”

In 2020, DOJ officials stated:

“Ensuring individual accountability for corporate wrongdoing has been a hallmark of our white-collar work in recent years …”.

“Why do we focus on individual accountability in addition to pursuing corporations?  Because we understand that corporations necessarily act through their officers and employees, and that to have a truly meaningful deterrent effect, our work must focus on not only entities, but also individuals where appropriate.”

In 2019, DOJ officials stated:

“While pursuit of criminal and civil remedies against corporations is important, we should always focus on the individuals responsible for misconduct. Cases against corporate entities allow us to recover fraudulent proceeds, reimburse victims, and deter future wrongdoing. But the deterrent impact on the individual people responsible for wrongdoing is sometimes attenuated in corporate prosecutions. The most effective deterrent to corporate criminal misconduct is identifying the people who commit crimes and sending them to prison.”

In 2018, DOJ officials stated: “focusing on individual wrongdoers is an important aspect of the Department’s FCPA program” and as follows:

“The Criminal Division’s commitment to corporate enforcement has been on full display with our emphasis on individual accountability.  A company only acts through its employees and agents.  It therefore makes sense to focus our investigative efforts on the culpable individuals – both to secure appropriate punishment for the bad actors, and to have the greatest impact on preventing and deterring corruption.”

In 2017, DOJ officials stated: “The DOJ is committed to holding  individuals accountable for criminal activity.” “Effective deterrence of corporate corruption requires prosecution of culpable individuals.  We should not just announce large corporate fines and celebrate penalizing shareholders.”

Previously, DOJ officials have stated that: “certainly…there has been an increased emphasis on, let’s get some individuals” and that it is “very important for [the DOJ] to hold accountable individuals who engage in criminal misconduct in white-collar (cases), as we do in every other kind of crime.”

Likewise, the DOJ’s FCPA Unit Chief stated that the DOJ is “very focused” on prosecuting individuals as well as companies and that “going after one or the other is not sufficient for deterrence purposes.”

Against this backdrop, what do the facts actually show?

Since 2000, the DOJ has charged 251 individuals with FCPA criminal offenses.  The breakdown is as follows.

  • 2000 – 0 individuals
  • 2001 – 8 individuals
  • 2002 – 4 individuals
  • 2003 – 4 individuals
  • 2004 – 2 individuals
  • 2005 – 3 individuals
  • 2006 – 6 individuals
  • 2007 – 7 individuals
  • 2008 – 14 individuals
  • 2009 – 18 individuals
  • 2010 – 33 individuals (including 22 in the Africa Sting case)
  • 2011 – 10 individuals
  • 2012 – 2 individuals
  • 2013 – 12 individuals
  • 2014 – 10 individuals
  • 2015 – 8 individuals
  • 2016 – 8 individuals
  • 2017 – 18 individuals
  • 2018 – 13 individuals
  • 2019 – 26 individuals
  • 2020 – 15 individuals
  • 2021 – 10 individuals
  • 2022 – 9 individuals
  • 2023 – 8 individuals
  • 2024 – 13 individuals

The following 13 individuals (in connection with 6 core actions) were charged with FCPA offenses that were filed and/or publicly announced in 2024.

  • As highlighted here and here, the DOJ criminally charged the following individuals associated with Stericycle: Mauricio Gomez Baez (a Mexican citizen who worked for Stericycle as the Senior Vice President of Stericycle’s Latin American division) and Abraham Cigarroa Cervantes (a Mexican citizen and former finance director of the Latin America division of Stericycle).
  • As highlighted here and here, the DOJ criminally charged the following individuals associated with AAR Corp. in connection with alleged bribery schemes in South Africa and Nepal: Julian Aires (a U.S. citizen associated with JM Aviation South Africa – a joint venture partner of AAR); and Deepak Sharma (a United Kingdom citizen and agent of AAR).
  • As highlighted here, the DOJ criminally charged the following individuals associated with Smartmatic in connection with an alleged bribery scheme in the Philippines: Roger Alejandro Pinate Martinez (a citizen of Venezuela and resident of Florida and cofounder, Chief Operating Officer and President of Smartmatic); and Jorge Miguel Vasquez (a citizen of the U.S. and executive who reported to Pinate).
  • As highlighted here, the DOJ criminally charged the following individuals associated with Azure Power in connection with an alleged Indian bribery scheme: Ranjit Gupta (a citizen of India who was the CEO of Azure Power Global Limited and CEO and Managing Director of an Azure subsidiary); Cyril Cabanes (a citizen of Australia and France who was previously a member of the board of directors of Azure and served as a representative of the company’s largest stockholder, Caisse de dépôt et placement du Québec (“CDPQ”); Saurabh Agarwal (a citizen of India employed by CDPQ who reported to Cabanes); Deepak Malhotra (a citizen of India employed by CDPQ who was a member of the board of directors of Azure); and Rupesh Agarwal (a citizen of India who served as a consultant for Azure and then as Chief Strategy and Commercial Officer for Azure).
  • As highlighted here, in connection with the BIT Mining / 500.com enforcement action, the DOJ also charged Zhengming Pan (a Chinese national and the former CEO of 500.com).
  • As highlighted here, in connection with the McKinsey enforcement action, the DOJ also charged Vikas Sagar (a citizen of Indian and a partner and senior partner of McKinsey working in McKinsey’s office in Johannesburg, South Africa).

An analysis of DOJ individual FCPA prosecutions over time reveals some interesting points.

Most of the individuals – 240 (or 95%) were charged since 2006.  Thus, on one level the DOJ is correct when it states that there has been an “increased emphasis” on individual prosecutions – at least as measured against the historical average given that between 1978 and 1999, the DOJ charged 38 individuals with FCPA criminal offenses.

Yet on another level, a more meaningful level given that there was much less overall enforcement of the FCPA between 1978 and 1999, the DOJ’s statements about its focus on individuals represents hollow rhetoric as demonstrated by the below figures.

Of the 240 individuals criminally charged with FCPA offenses by the DOJ since 2006:

  • 22 individuals were in the failed (and manufactured) Africa Sting case;
  • 16 individuals were in connection with PDVSA matters;
  • 9 individuals were in the Haiti Teleco case;
  • 8 individuals were in connection with the Control Components case;
  • 8 individuals were in connection with the Siemens case;
  • 7 individuals were in connection with the Sargeant Marine case;
  • 6 individuals were in connection with the Alstom case;
  • 5 individuals were associated with DF Group in the Indian mining licenses case;
  • 5 individuals were associated with Direct Access Partners;
  • 5 individuals were associated with Rolls Royce;
  • 5 individuals were associated with Azure Power;
  • 4 individuals were in connection with the Lindsey Manufacturing case;
  • 4 individuals were  in connection with the LatinNode / Hondutel case;
  • 4 individuals were in connection with the Nexus Technologies case;
  • 4 individuals were in connection with the BizJet case; and
  • 4 individuals were associated with Hunt Pan Am Airlines.

In other words, approximately 40% of the individuals charged by the DOJ with FCPA criminal offenses since 2006 have been in just eleven core actions and approximately 48% of the individuals charged by the DOJ since 2006 have been in just sixteen core actions. This has been previously highlighted numerous times on these pages as the “clustering phenomenon” of DOJ individual FCPA actions.

Considering that there has been 152 corporate DOJ FCPA enforcement actions since 2006, this is a rather remarkable statistic.  Of the 152 corporate DOJ FCPA enforcement actions, 114 (or 75%) have not at least yet resulted in any DOJ FCPA charges against company employees.

Compare this figure to FCPA enforcement prior to 2004.

As highlighted in this prior post, from 1977 to 2004 approximately 90% of DOJ criminal corporate FCPA enforcement actions resulted in related FCPA charges against company employees.

Why the change?

Read the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement” in which a hypothesis is tested and to see comprehensive charts detailing every DOJ corporate FCPA enforcement and whether the action also resulted in related charges against company employees.

In short, and as demonstrated by the statistics, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is that 75% of DOJ corporate enforcement actions since 2006 have not resulted in any DOJ FCPA charges against company employees.

Indeed, since the DOJ supposedly renewed its emphasis on individual accountability with the Yates Memo release in September 2015, there have been 71 DOJ corporate enforcement actions. At present, 52 of those actions (73%) have lacked any related FCPA charges against company employees. The only DOJ corporate FCPA enforcement actions since the Yates Memo to have resulted in related FCPA charges against company employees were Embraer, Keppel Offshore, SBM Offshore, Rolls-Royce, Transport Logistics Int’l, Cognizant Technologies, TechnipFMC, Herbalife, Sargeant Marine, Ericsson, Goldman, Vitol, Glencore, Corsa Coal, Freepoint Commodities, Gunvor, BIT Mining/500.com, McKinsey, and AAR.