After all, FCPA enforcement is often unpredictable largely on account of the enforcement agencies having a tremendous amount discretion (some would say too much), coupled with the fact that much FCPA enforcement takes place around conference room tables in Washington D.C. in the absence or practical absence of outside scrutiny.
Nevertheless, set forth below are ten things that will likely happen in 2016 (presented in a slightly jocular, yet equally serious manner) based on my experience in following FCPA enforcement (and the flow of FCPA information) as close as anyone for the past six years.
- Sometime during the year there will be a lull in FCPA enforcement, yet one minor, inconsequential enforcement action will be announced (probably in the early spring) and everyone will write about it as well as the purported new trends and compliance messages from the enforcement action. Why? Because it happens all the time as FCPA Inc. is an active group of writers that frequently make mountains out of mole hills by using recent enforcement action as a “hook” to market their practices and compliance services. In 2015, it was the late February enforcement action against Goodyear that generated a substantial amount of commentary. I fielded more media calls about this inconsequential action than any other FCPA enforcement action in recent memory. During one call, the reporter asked for my reaction, I looked outside my window and it was raining, and I said “well it’s raining out, it’s really no big deal.” The reporter said, “that may be true, but to others this is a thunderstorm.” Precisely my point.
- On more than one occasion in 2016, the media contingent of FCPA Inc. is likely to publish an article or post that is false, misleading, embellished, breathless, or taken completely out of context. Why? Because it happens all the time (see here for a collection of examples) and is the end result of non-lawyer journalist and/or FCPA Inc. participants with financial motives serving as the gatekeepers of much information.
- The most active month for SEC enforcement will likely be September. Why? Because September is the end of the SEC’s fiscal year and historical statistics demonstrate that September tends to be a very active month for FCPA enforcement.
- Speaking of September, there will likely be some “major” DOJ/SEC policy speech. Why? Because it happens almost every September as the enforcement agencies seemingly seek to reassert their authority and re-articulate their message after the summer hiatus. In connection with this “major” policy speech (which in reality will likely not be “major” at all) the aforementioned media contingent of FCPA Inc. will likely churn out articles and client alerts (most of which will simply regurgitate the policy position as if the policy announcement – much of it old news to those informed – of a political actor represented a big deal).
- In months leading up to November a certain for-profit conference firm will, in a truly disgraceful practice, likely market DOJ / SEC FCPA enforcement attorneys who will speak at their event as if the enforcement attorneys are a commodity they own and can profit from. Why? Because it happens every year. The speech delivered by the public officials at the private event will generate much FCPA Inc. media coverage, but sophisticated observers will have already heard the speech. Why? Because it will likely be basically the speech delivered last year at the event (See here and here).
- In November, the SEC will release its annual whistleblower statistics and alleged FCPA violations will likely be a very minor component of the overall tips the SEC receives. Why? Because, despite numerous early predictions that the whistleblower provisions would transform FCPA enforcement, alleged FCPA violations have consistently comprised less than 5% of the SEC’s overall tips.
- Marketing the holidays seems to occur sooner and sooner each year, thus this next development will likely take place in November, but perhaps even as early as October or September. FCPA Inc. participants will churn out client alerts and publications warning of the FCPA risks of the holidays and gift giving. Why? Because it happens every year and is convenient hook to try to sell compliance services.
- Back to SEC FCPA enforcement. The SEC will likely not have to prove any of its FCPA enforcement theories to anyone other than itself. Why? Because in the FCPA’s 38 year history, the SEC has never gone to trial in an FCPA matter (corporate or individual) and in the rare instances when it has been put to its ultimate burden of proof, the SEC has never prevailed. (See here).
- Like September, December will also likely be an active month for FCPA enforcement. Why? Because even though December 2015 was a clear outlier, December is the end of the calendar year and historical statistics demonstrate that December tends to be a very active month for FCPA enforcement.
- A high-ranking FCPA enforcement attorney will likely leave either the DOJ or SEC for a lucrative, guaranteed multi-million dollar position at a law firm and then almost immediately begin writing client alerts and other publications criticizing recent FCPA enforcement theories. Why? Because it happens all the time and in 2016 or early 2017 there is likely to be substantial turnover at the DOJ and SEC given the change in executive administration.