Anti-Corruption 2024

Last Updated December 07, 2023


Law and Practice


Freshfield Bruckhouse Deringer has a white-collar defence team that is highly skilled in advising cross-border businesses on anti-bribery and corruption risks arising anywhere in the world. The firm’s US white-collar partners, most of whom are former federal prosecutors, lead a team with more than 75 US lawyers working in close co-ordination with Freshfields offices in Europe, the Middle East, and Asia. Freshfields helps clients respond to simultaneous inquiries from the US DOJ, the US SEC and CFTC, the UK Serious Fraud Office, and other regulators, in connection with allegations of bribery and corruption. Freshfields lawyers develop multi-pronged defence strategies to navigate the varied expectations of regulators around the globe. The firm regularly conducts international anti-bribery compliance programme reviews and provides due diligence and transactional advice for some of the world’s leading investors, banks, and multi-nationals. Recent anti-corruption work has included securing the first declination with disgorgement under the DOJ’s Corporate Enforcement Policy.

The United States has ratified the OECD Convention on Combating Bribery of Foreign Public Officials and the UN Convention Against Corruption. It has signed, but not ratified, the Council of Europe Criminal Law Convention on Corruption.

The Foreign Corrupt Practices Act (FCPA) is the main federal legislation relating to foreign bribery.

A variety of domestic statutes (see 1.3 Guidelines for the Interpretation and Enforcement of National Legislation) govern domestic bribery or other corruption involving state or federal government officials and employees. Most of the relevant federal statutes are found in Title 18 of the United States code. Each state has its own criminal laws prohibiting bribery or corruption-related offences. Some local or municipal governments may have anti-corruption or ethics regulations.

The most important federal anti-corruption agencies actively issue and revise public guidance documents, which are important resources but are not legally binding.

The two most relevant sources of guidance are detailed below.

The FCPA Resource Guide

A joint publication by the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), this document provides an overview of the FCPA and the agencies’ approaches to key questions about the FCPA’s scope and application (eg, successor liability, parent-subsidiary relationships, and individual liability).

In 2020, the DOJ issued the first significant revision of the FCPA Resource Guide since it was first published in 2012. The key updates cover:

  • the FCPA’s extraterritorial application (discussed in detail below);
  • the factors US courts may consider in determining whether a non-US person is a “foreign official” for the purposes of the FCPA;
  • recent judicial decisions limiting the SEC’s ability to obtain disgorgement as a remedy for violations of securities law; and
  • emphasising the importance of effective compliance programmes, including:
    1. pre-M&A due diligence; and
    2. robust investigation, analysis, and remediation when misconduct is identified.

The Justice Manual

This document sets out DOJ policy and practice regarding how to charge and prosecute violations of most federal criminal statutes. The Justice Manual is a useful reference for understanding the DOJ’s interpretation of the law and the factors it considers when making decisions regarding (for example) whether to file charges, what penalties to seek, and how to treat co-operating witnesses and defendants.

The Justice Manual includes a section on the DOJ’s Principles of Federal Prosecution of Business Organizations, which lays out the agency’s approach to investigating and prosecuting corporations. The Principles feature important information about how prosecutors approach businesses that co-operate with federal investigations.

In addition to revisions of official guidance, such as the Justice Manual and the FCPA Resource Guide, new enforcement approaches may be announced on an ad hoc basis through memoranda, public statements by agency officials, or other publications. State agencies sometimes take a similar approach.

There have not been significant legislative amendments to the key federal corruption statutes in 2023. 

The list below identifies the federal criminal statutes that are frequently used to prosecute bribery and corruption. Individual states may have similar statutes.

  • The Foreign Corrupt Practices Act is codified at 15 U.S.C. Sections 78dd-1 et seq. The statute prohibits “corruptly” giving “anything of value” to “foreign official[s]” or political party members for the purpose of:
    1. influencing the foreign official’s acts or decisions;
    2. inducing the foreign official to act contrary to their lawful duty;
    3. securing “any improper advantage”; or
    4. inducing the foreign official to influence a foreign government “in order to assist... in obtaining or retaining business for or with, or directing business to, any person.”
  • The general prohibition on bribing US officials is codified at 18 U.S.C. Section 201(b). This statute prohibits “corruptly” giving or receiving (or offering, demanding, etc) anything of value in return for an official act or omission by a public official. This law also prohibits exchanging things of value for an act of fraud by the public official (or for the public official’s assistance in a fraud).
  • The “gratuities” law, codified at 18 U.S.C. Section 201(c), prohibits giving “anything of value” to a current, former, or future public official “because of any official act” (unless such an act is provided for by law). This statute is broader than the “bribes” law at 18 U.S.C. Section 201(b) because it does not require “corrupt” intent or an explicit quid pro quo.
  • 18 U.S.C. Sections 207–08, the federal criminal conflict of interest statutes, restrict the conduct of federal officers and employees during and after their federal service. In general, federal officials must not engage in official acts that could affect their personal financial interests (or those of their family members, their future employers, or certain affiliated organisations). These offences are strict liability, although wilful violations expose an official to more severe penalties.
  • 18 U.S.C. Sections 641, 654, and 666 broadly prohibit theft, wrongful conversion, embezzlement, or bribery involving federal property or programmes funded by federal money. Generally speaking, the acts must be committed “knowingly” or with a “corrupt intent” for criminal liability to apply.
  • Federal fraud statutes, especially the mail and wire fraud statutes at 18 U.S.C. Sections 1341 and 1343, are frequently used in corruption prosecutions. 18 U.S.C. Section 1346 authorises prosecutors to file charges under these statutes based on an “honest services” theory – ie, that a corrupt official deprived the government of its intangible right to his or her uncompromised judgment, discretion, etc (ie, their “honest services”). These charges require a specific intent to deprive the government of honest services, property, etc.
  • Other federal statutes are often also used to charge conduct related to a bribery scheme, although they are not specifically related to corruption. For example, prosecutors may charge corrupt officials (or their co-conspirators) with:
    1. extortion (18 U.S.C. Section 1951) for obtaining property (eg, a bribe) “under colour of official right”;
    2. travelling in interstate or foreign commerce (or sending interstate emails, phone calls, etc) to “promote” or “carry on” unlawful activity, including violations of state bribery laws (18 U.S.C. Section 1952, also called the “Travel Act”); or
    3. money laundering (18 U.S.C. Sections 1956-57) for monetary transactions involving the bribe funds or the proceeds of a bribery scheme. Conspiring to violate any of these statutes, or aiding and abetting violations, may be separately charged under 18 U.S.C. Sections 2, 371, and/or 1961–68.


A bribe may be “anything of value” under the FCPA and domestic statutes. “Things of value” have included cash payments, benefits in kind, lavish gifts, excessive hospitality, charitable donations, contracts, or employment relationships.

The receipt of a bribe is an offence for domestic bribery under 18 U.S.C. Section 201, but not under the FCPA. The US government has employed other laws (such as money-laundering statutes) to prosecute foreign officials who receive bribes, however.

Merely proposing or accepting an improper advantage may constitute an offence. Generally, US anti-corruption statutes do not require that the desired results occur, as long as the perpetrator acted with the requisite intent. Indeed, US authorities often criminally prosecute defendants under broad conspiracy statutes in situations where it would be impossible for the expected results to occur – for example, by using undercover law-enforcement agents who are only pretending to be public officials or connected to public officials.

Hospitality, travel, gifts and promotions

Under domestic bribery laws, federal and state officials, including elected political figures and career employees, are generally restricted in the gifts and hospitality they may receive from sources outside the government. Some officials, such as members of Congress, may be required to disclose the gifts they receive to the public. For federal employees, gifts over USD20 are generally prohibited (and they generally may not accept more than USD50 in a year from a single non-government source). Travel expenses are a separate, complicated area of law and also require an analysis of internal government ethics rules. Whether or not a government employee’s travel may be funded by a non-government source often depends on the purpose of the trip and the specific rules of the agency where they work. 

The FCPA does not limit foreign officials’ ability to accept gifts, hospitality, etc, but such expenses can be “things of value” that can give rise to FCPA liability.


The FCPA permits persons subject to its jurisdiction to make “facilitating or expediting payment[s]... the purpose of which is to expedite or to secure the performance of a routine governmental action” by a foreign official. In practice, this exemption is read very narrowly. 

The domestic bribery statute does not have an equivalent provision. It is a separate crime to pay a “gratuity”, which is a facilitation payment made on account of an official act but not with an intent to influence it. Courts have held that if an official demands payment to perform a routine duty, a defendant may raise an economic coercion defence to the bribery charge.

Failing to prevent bribery is not a specific offence under US law (and US law generally does not criminalise failures to prevent a crime).


The FCPA defines the term “foreign official” as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organisation, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organisation.”

The FCPA Resource Guide advises that state-owned or state-controlled companies may be “instrumentalities”, so that their employees could be considered “foreign officials”. Many factors are relevant in determining whether such a company is an “instrumentality”, including “the foreign state’s extent of ownership of the entity; the foreign state’s degree of control over the entity (including whether key officers and directors of the entity are, or are appointed by, government officials); the foreign state’s characterisation of the entity and its employees; the purpose of the entity’s activities; the entity’s obligations and privileges under the foreign state’s law and the general perception that the entity is performing official or governmental functions”.

In practice, criminal and civil FCPA charges often involve payments or gifts to employees at state-owned or state-controlled enterprises.

Domestic statutes

18 U.S.C. Section 201 defines a “public official” as a “Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.” State statutes feature similar definitions.

The bribery of foreign public officials is also criminalised. The FCPA prohibits corrupt payments to foreign public officials for the purpose of obtaining or retaining business opportunities. Likewise, foreign bribery may be prosecuted under the Travel Act.

Commercial bribery is primarily regulated by state rather than federal law. For example, New York Penal Law Section 180.00 provides that “[a] person is guilty of commercial bribing in the second degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs”. Because several US states have criminalised commercial bribery, the DOJ has taken the position that violations of such state commercial bribery laws can be predicate offences under the Travel Act.

Federal prosecutors may also charge private bribery or kickback schemes as mail or wire fraud under an “honest services fraud” theory.

No federal criminal statute uses the term “influence-peddling”. 

As noted elsewhere, conduct involving improper use of official authority, especially where a private party receives an “undue advantage”, may violate a variety of federal or state laws, including the federal fraud and conflict of interest statutes, abuse-of-power laws, or lobbying regulations. 

The FCPA specifically prohibits giving things of value to a foreign official for purposes of “securing any improper advantage” in connection with obtaining or retaining business. 

Conduct involving foreign officials may also implicate federal or state laws on fraud, conflicts of interest, or lobbying. Acting on behalf of foreign officials may also violate the US law requiring foreign government agents to register with the federal government.

The FCPA requires “issuers” (generally speaking, entities whose securities are registered with the SEC and/or entities that are required to file periodic reports with the SEC) to keep accurate books and records and to establish and maintain a system of internal controls adequate to ensure that the company’s assets are managed in compliance with management’s instructions. For accounting violations, the SEC may impose civil penalties, seek injunctive relief, enter a cease-and-desist order and require disgorgement of tainted gains. Civil fines may be up to a maximum of USD963,837 for a corporation or USD192,768 for an individual, or the gross amount of the pecuniary gain per violation. Neither materiality nor knowledge is required to establish civil liability.

The DOJ has authority over criminal accounting violations (ie, where persons “knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account” required to be maintained under the FCPA). Penalties for criminal violations of the FCPA’s accounting provisions are set forth below.

Numerous federal statutes cover public officials’ conduct. For example, prosecutors may charge corrupt public officials for conduct related to:

  • theft, wrongful conversion, embezzlement, or bribery related to or involving federal property or federally funded programmes (18 U.S.C. Sections 641, 654, and 666);
  • conflicts of interest, generally caused by federal officials engaging in official acts that could affect their personal financial interests (or those of their family members, their future employers, or certain affiliated organisations (18 U.S.C. Sections 207–08); and
  • acting with the specific intent to deprive the government of its intangible right to “honest services”, such as the public official’s uncompromised judgment, discretion, etc (18 U.S.C. Section 1346).

The FCPA and domestic statutes apply to offences committed through an intermediary. 

Liability against a principal may arise for payments made by an agent or intermediary if the principal “knew” about the misconduct. This includes when the principal was aware of a high probability that the agent was making improper payments, even if the principal did not know about a specific payment or consciously avoided learning about the payment (ie, remained “wilfully blind” to it).

Companies subject to US jurisdiction commonly conduct due diligence on prospective intermediaries to mitigate these risks. For example, “red flags” in this type of diligence may include commission payments to the intermediary in excess of market value, a family or other relationships between an agent and a government official, or a recommendation of a particular agent by a government official.

Most federal crimes are subject to a five-year statute of limitations, although criminal violations of the FCPA’s accounting provisions are subject to a six-year limitations period. In some circumstances, prosecutors may be legally permitted to charge defendants for conduct that pre-dates the limitations period. For example, if the conduct is part of an ongoing scheme or conspiracy, the limitations period begins to run at the end of the scheme. However, as long as one act in furtherance of the conspiracy occurred within the five-year period, a conspiracy charge would still be timely. 

State statutes of limitations vary between jurisdictions.

Defendants are often prosecuted in the USA even where most of the criminal conduct was committed abroad, but extraterritorial jurisdiction varies from one statute to another. 

Non-US conduct may be covered by US law where either the specific statute applies extraterritorially, or there is a US nexus (eg, the scheme involves a US bank account). 


US law on extraterritoriality is complex and changes with judicial decisions and legislative action. Different statutes apply outside the USA in different ways. US statutes are presumed not to have extraterritorial effect unless they include a “clear indication” to the contrary. Without a “clear indication”, courts examine the statute’s “focus” to determine whether an alleged violation is “domestic”. The law continues to change in this area; some courts have found that domestic conduct is necessary, but not sufficient, to apply US law to claims that mostly arise overseas. 

As an initial point, US law applies on US soil – so if individuals are visiting the US (for business or pleasure), they face increased US legal risk over any business they do while on their trip. Secondly, US law often applies to US citizens, permanent residents (ie, “green card” holders), and entities organised under US law anywhere in the world. Non-US transactions could be exposed to US legal risk because some of the personnel are US nationals.


Criminal conduct outside the USA could result in FCPA liability under one of four theories: issuer liability, domestic concern liability, liability as an agent of an issuer or domestic concern, and, potentially, conspiracy/accomplice liability.


If a legal entity is an issuer of registered US securities (regardless of where the entity is headquartered), the entity may be held liable for violations of the FCPA’s anti-bribery provisions committed anywhere in the world, provided that there is a connection to the USA (eg, an email that touches the USA). If an issuer is organised under US laws, the entity may be held liable for FCPA violations, irrespective of any other connection to the US. 

Issuers are also subject to the FCPA’s accounting provisions everywhere in the world.

Domestic concerns

US domestic concerns (ie, US nationals and businesses incorporated under US law or headquartered in the USA and their employees, agents, etc) are required to comply with the FCPA’s anti-bribery provisions, regardless of where their operations may be located. Such entities may be held liable for violations of the FCPA outside the USA.

Agent liability

A person or legal entity acting as an agent of an issuer or domestic concern can face FCPA liability for engaging in conduct in furtherance of an improper payment, even when the issuer/domestic concern did not expressly direct or authorise the improper payment. This type of liability may apply without regard to where the improper payments were made if the conduct involves a US person or there is a connection to the USA. 

Conspiracy and accomplice liability

If a non-US company acts in concert with another company or person, and jurisdiction can be established for that company or person (eg, because they are a domestic concern), it is possible that the non-US company could be held liable for either conspiring with or aiding and abetting the US person or legal entity that is directly subject to the FCPA, or wilfully causing the US person or legal entity to violate the FCPA. As with direct liability for issuers and domestic concerns, this type of liability may apply without regard to where any improper payments were made, as long as the co-conspirator is organised under the laws of the USA or any state in the USA, or there is a connection to the USA.

The United States Court of Appeals for the Second Circuit, however, has ruled that a non-resident foreign national may not be charged with conspiracy to violate the FCPA or with aiding and abetting an FCPA violation unless the foreign national acted as an agent of an “issuer” or a “domestic concern” or was physically present in the US. The Second Circuit is only one of 11 intermediate federal appellate courts, and the Fifth Circuit has recently declined to follow the Second Circuit’s approach.

Domestic statutes

As noted, US courts presume that most US criminal statutes do not apply extraterritorially. For example, courts have ruled that 18 U.S.C. Sections 666, 1341, 1343, and 1346 do not apply extraterritorially. 

It is important to note, however, that even if specific statutes are not applied extraterritorially, non-US conduct may fall under the scope of a statute that does, such as the Travel Act or some charges under 18 U.S.C. Section 371. For example, a court has ruled that a defendant who allegedly accepted a bribe in Paris violated the Travel Act, regardless of whether 18 U.S.C. Section 201 applied extraterritorially. 

Moreover, statutes involving domestic bribery – that is, bribes paid to US officials – are likely to have a US nexus. Authorities are more likely to rely on a US nexus for jurisdictional arguments than a potentially complex extraterritoriality theory.

US Nexus

Even US laws that do not have extraterritorial effect may apply in cases involving foreign conduct if certain US connections exist, including emails sent through a US server, telephone calls placed to or from the United States, or US dollar-denominated transactions clearing through US correspondent bank accounts.

Under general principles of US law:

  • corporations may be held criminally liable, including for violations of the FCPA or domestic bribery statutes;
  • individuals and corporations may be held liable for the same offence; and
  • successor entities may be held liable for offences by the target entity prior to the merger or acquisition.

Corporate Liability

Under the doctrine of respondeat superior, a corporation may be held criminally liable for the acts of its employees, agents, officers, etc, provided that:

  • those acts were undertaken within the scope of their employment (even if such actions were against corporate policy); and
  • they were intended, at least in part, to benefit the corporation. 

Corporate prosecutions are more common for FCPA violations than domestic bribery, but both are possible. 

High-level directors, officers, etc, need not be involved for corporate criminal liability to apply. Any employee or third-party contractor can incur liability on behalf of a corporation.

Finally, a subsidiary’s criminal conduct may be imputed to its parent corporation, if the subsidiary is the parent’s agent. To make this determination, US authorities evaluate whether the parent controls the subsidiary, including through knowing about and/or directing the subsidiary’s actions.

Parallel Individual and Corporate Liability

While no individual need be convicted in order for a company to face liability, DOJ policy emphasises individual accountability. Authorities often look favourably on co-operating companies that identify key individuals involved in misconduct, and may consider such efforts when assessing a company’s co-operation (and any related reduction in penalties).

Successor Liability

When one company merges with or acquires another, the successor generally assumes the predecessor’s liabilities under US law, including criminal liabilities. Prosecutors and regulators, however, sometimes decline to act against companies that conducted comprehensive pre-acquisition due diligence and voluntarily disclosed and remediated any potentially problematic conduct identified during the diligence.

The DOJ has held successor companies liable for the acts of predecessor companies following mergers and acquisitions when the misconduct continued after the transaction, however. Authorities may still take action against the predecessor (if they would have had jurisdiction over it), but the FCPA Resource Guide emphasises the value in a company with a robust compliance programme acquiring a company without one.

The FCPA includes two affirmative defences to anti-bribery charges, codified at 15 U.S.C. Section 78dd-1(c). First, there is a defence if the payment, offer, etc, “was lawful under the written laws and regulations of the... [relevant foreign] country.” A recent case held that this defence only applies where the payment is affirmatively authorised by local law (ie, the defence does not apply where the payment is simply not prohibited by local law).

The second defence provides that “reasonable and bona fide expenditures, such as travel and lodging expenses... was directly related to the promotion, demonstration, or explanation of products or services; or the execution or performance of a contract” with a foreign government.

In practice, defendants also commonly claim that they lacked the requisite intent to commit a corruption crime, that the conduct did not involve an “official act” by a government official, or that there was no quid pro quo in which a benefit was offered in exchange for an official act. 

The FCPA does not recognise a formal defence based on adequate procedures, but, as a practical matter, prosecutors and SEC enforcement attorneys may take the adequacy of compliance controls into account when making charging decisions.

As with the defences themselves, exceptions to US criminal defences generally arise from common law, rather than specific statutory provisions. For example, a person may not be able to rely on an “advice-of-counsel” defence where the advice was obtained in bad faith (eg, they withheld key facts from outside counsel).

In general, there are no statutory de minimis exceptions for violations of US criminal laws (although, as previously noted, US laws permit certain de minimis gifts for government officials). Because of US authorities’ considerable prosecutorial discretion, however, enforcement may be less likely where only de minimis amounts are involved. As noted, small payments related to routine government actions may fall within the FCPA’s narrow exception for so-called facilitation payments.

The key US anti-bribery and anti-corruption laws do not exempt any industry or sector. 

A potential defendant’s industry or sector may informally be factored into decisions about how the government resolves a potential violation, however. For example, government authorities may be willing to consider how to investigate defence companies without publicising sensitive national security information.

The Justice Manual and the US Sentencing Guidelines (USSG), a set of advisory rules designed to inform judges’ discretion when imposing criminal sentences, both encourage companies to self-disclose misconduct by offering “credit” for such co-operation. Co-operation credit is a key aspect of US criminal and regulatory defence, and it often features prominently in authorities’ decisions about whether and what type of action to bring, as well as providing a basis for reductions in penalties and other negative consequences of enforcement actions.

The Justice Manual and Compliance Guidance

In addition to the USSG, both the Justice Manual and the FCPA Resource Guide discuss self-reporting and co-operating with law enforcement, and the DOJ has provided guidance on the types of factors it considers in assessing a company’s compliance programme when investigating a corporate entity (the “US Compliance Guidance”). The DOJ is not legally obliged to follow the US Compliance Guidance, which is similarly not binding on other US government authorities. Even so, the DOJ and others generally take these factors (or similar ones) into account.

The DOJ takes a functional approach to the US Compliance Guidance — the agency does not simply verify whether a compliance programme includes certain components (eg, a whistle-blower programme). Instead, the US Compliance Guidance emphasises that the DOJ will make an individualised assessment of a company’s compliance programme based on that company’s particular risk profile and specific context. Indeed, the US Compliance Guidance notes that there is no “rigid formula” for assessing compliance programmes and that the topics it addresses are not exhaustive. 

While recognising that a compliance programme must be tailored to a company’s particular risk profile, the Compliance Guidance identifies best practices that are common to effective compliance programmes. These practices include, but are not limited to:

  • a commitment from senior management to a “culture of compliance”;
  • a clearly articulated policy against corruption and a code of conduct;
  • the assignment of responsibility for oversight and implementation of the anti-bribery and corruption compliance programme to a senior executive with appropriate experience, sufficient autonomy from management, and resources to ensure the programme is implemented effectively;
  • assessing the risks faced by the company so that the company can take a risk-based approach in designing and implementing its anti-bribery and corruption compliance programme; and
  • periodically testing and reviewing the anti-bribery and corruption compliance programme.

The Justice Manual also includes the FCPA Corporate Enforcement Policy (CEP). The CEP establishes a rebuttable presumption that the DOJ will decline to prosecute a company for FCPA violations if the company:

  • voluntarily self-discloses misconduct;
  • fully co-operates with the DOJ’s investigation; and
  • takes timely and appropriate remedial action.

The CEP provides insight into how the DOJ assesses compliance and remediation and potential penalty reductions for co-operating companies that do not qualify for a declination. Recent DOJ actions indicate that it will apply the approach to leniency set out in the CEP to other kinds of misconduct, beyond FCPA violations.

CEP Revisions

In 2023, the DOJ revised the CEP to reflect changes in DOJ policy and practice, including the following points.

  • Voluntary disclosure incentives – a company is presumed to be eligible for a declination of prosecution (with disgorgement of profit) if it meets the requirements of voluntary self-disclosure, full co-operation, and remediation, and has no aggravating circumstances. Even in the presence of aggravating factors, a company may still benefit from a declination where it has provided “extraordinary co-operation.”
  • Compensation-related compliance structures – to receive full credit for timely and appropriate remediation, a company must show that it uses compensation structures and disciplinary measures to incentivise employee compliance. In March 2023, the DOJ introduced the first-ever Pilot Program on Compensation Incentives and Clawbacks, which will reward co-operating companies that attempt to claw-back payments to law-breaking executives and employees.
  • Personal devices and messaging platforms – in addition, to receive full credit for timely and appropriate remediation, a company must show that it has a prohibition against the deletion of business records and has appropriate guidance and controls on the use of personal devices and messaging platforms, including ephemeral messaging applications. As of March 2023, the DOJ will also consider this topic when evaluating a company’s overall compliance programme.


Violating the FCPA’s substantive anti-bribery provisions may result in up to five years’ imprisonment and/or a fine of up to USD250,000 for each offence committed by an individual. Corporations may be punished by fines of up to USD2 million per violation.

Wilful violations of the accounting provisions may result in criminal fines of up to USD25 million for a legal entity. Individuals may be required to pay fines of up to USD5 million and/or serve as many as 20 years in prison. Moreover, the DOJ is authorised to seek a fine of up to twice the benefit that the defendant obtained by making the corrupt payment(s), which often represents a far greater amount than the maximum fines previously noted.

Defendants may be required to pay civil monetary penalties of USD10,000 for each violation of the anti-bribery provisions, whether by an individual or legal person. The DOJ and the SEC may also seek civil disgorgement penalties for books and records violations.

Domestic Bribery

Penalties for violating domestic bribery or fraud laws vary by jurisdiction.       

For example, violations of the federal mail or wire fraud statutes may result in fines and up to 20 years’ imprisonment (or 30 years’ imprisonment in some circumstances). The maximum penalty for violating 18 U.S.C. Section 201(b) is 15 years in prison and/or substantial monetary fines; 18 U.S.C. Section 201(c) has a maximum prison sentence of two years and/or fines.

Collateral Consequences

Aside from imprisonment and monetary fines/penalties, an anti-corruption investigation (or even allegations that a company has violated bribery or corruption laws) could lead to several collateral consequences that could prove extremely damaging to a business or individual. Such an investigation could lead to debarment from contracting with the US government or international financial institutions, loss of important regulatory statuses under US law, and/or termination of commercial relationships.

As previously noted, the Justice Manual, FCPA Resource Guide, and other publications provide important guidance on how agencies assess penalties. 

The US Sentencing Commission Guidelines (USSG) review a number of factors that may warrant enhanced or mitigated sentences. For example, the greater the monetary loss caused by a corrupt scheme, the more severe the recommended sentence will be. Generally speaking, bribery and other white-collar crimes do not have mandatory minimum sentences, but repeated offences would be more severely punished.

The USSG permit courts to reduce criminal penalties where a company has an effective compliance programme; the DOJ often uses the USSG as a baseline to assess penalties in corporate resolutions. Chapter 8 of the USSG provides guidelines for sentencing organisations that have been convicted of a crime. This chapter establishes the elements of an “effective” compliance programme; companies with such programmes may be eligible for substantial reductions from the sentence that the USSG would otherwise recommend. 

The national legislation does not establish an affirmative duty to prevent corruption (although, as noted elsewhere, US “issuers” are required to maintain an adequate system of internal controls and accurate books and records).

The national legislation obligates firms and individuals across industry sectors to disclose efforts to influence public officials. There are two key statutes that concern domestic and foreign lobbying activities.

The Lobbying Disclosure Act (LDA) is codified at 2 U.S.C Sections 1601 et seq. The LDA defines a “lobbyist” as an individual who spends more than 20% of their time each quarter on “lobbying activities”, which encompass communications that seek to influence federal legislation, regulation, administration, and nomination processes. It does not apply to media organisations. The LDA requires lobbying entities to register and provide quarterly reports on lobbying activities. The Clerk of the House and Secretary of the Senate administer the law. The penalties include fines of up to USD200,000 per violation and, in some cases, up to five years in prison. Since 1995, the Secretary of the Senate has referred 24,500 cases of non-compliance to the US Attorney for the District of Columbia, which enforces the law.

In turn, the Foreign Agent Registration Act (FARA) is codified at 22 U.S.C. Section 611 et seq. FARA defines a “foreign agent” as an individual who, on behalf of a “foreign principal”, engages in political activities, acts in a public relations capacity, solicits or dispenses anything of value, or provides representation before any US government agency or official. A “foreign principal” is a foreign government or political party, a person outside the US (unless a US national), or group of persons organised under the law of or having its principal place of business in a foreign country. It does not apply to certain religious entities, academic groups, and legal representatives in legal proceedings. Foreign agents must register with the Attorney General within ten days of starting their activities, even if there is no monetary compensation for their work, and they must comply with semi-annual reporting obligations. The penalties include fines of up to USD250,000 for each violation and up to five years in prison.

In general, there is no such duty to disclose these violations, in US law. Depending on the specifics of a particular violation, however, US individuals and/or companies may be exposed to liability for failing to disclose the violations (eg, if a violation exposes a US securities issuer to “material” risks, the issuer may face civil or criminal liability for failing to disclose the risk to its shareholders). 

As discussed elsewhere, disclosure and co-operation with a subsequent government investigation often helps a company or individual reduce a potential penalty.

The US has an extensive body of law regarding whistle-blowing. Broadly speaking, US law generally protects whistle-blowers from retaliatory action taken against them for reporting their reasonable belief of a possible violation of many federal or state laws, including violations of federal securities or commodities laws or other types of violations covered. The scope of protected whistle-blower activity varies, depending on the setting and US jurisdiction. 

For example, the Sarbanes-Oxley Act (SOX) protects employees of publicly traded companies and their affiliates from retaliation for reporting alleged mail, wire, bank or securities fraud and related violations.

The details of a permissible whistle-blower protection claim (such as the statute of limitations) vary from one statute to another. For example, SOX requires an employee to file a written complaint within 180 days after an alleged retaliation, while the Dodd-Frank Act permits claims for up to ten years.

The SEC and CFTC have programmes to pay monetary awards to whistle-blowers who voluntarily provide original information about a violation of relevant laws (including bribery or corruption-related offences) that leads to a successful enforcement action. Whistle-blowers may be entitled to an award if the agency recovers a monetary sanction over USD1 million. The SEC and CFTC are required to give all entitled whistle-blowers an award of at least 10% and as much as 30% of the penalties collected in the enforcement action. For example, since the inception of the SEC whistle-blower programme in 2010, the SEC has paid more than USD1.3 billion in 328 awards to individuals for providing information that led to the success of SEC and other agencies’ enforcement actions.

Likewise, a whistle-blower who files a civil action under the False Claims Act or similar state laws alleging false representations in connection with a government-funded programme may be entitled to receive a substantial award based on the damages suffered by the relevant government agency. These suits may involve corruption-related allegations (eg, that a government contract was awarded based on a false representation that the contractor was not affiliated with any public officials). The state or federal government generally has the option to intervene in these actions, but the suits may proceed to judgment without any such intervention.

The list below details the key statutory whistle-blowing provisions at the federal level, along with citations.

  • Sarbanes-Oxley (SOX) Act (principally 18 U.S.C. Section 1514).
  • Dodd-Frank Wall Street Reform and Consumer Protection Act (7 U.S.C. Section 26).
  • SEC Whistleblower Statute (15 U.S.C. Section 78u-6).
  • SEC Whistleblower Rules (17 C.F.R. Section 240.21F).
  • CFTC Whistleblower Rules (17 C.F.R. Section 165 et seq).
  • Federal False Claims Act (31 U.S.C. Sections 3729–3733).

For further detail, see the websites for the SEC and CFTC whistle-blower programmes.

There is no US federal government agency tasked exclusively with enforcing anti-bribery and anti-corruption laws, although a variety of federal agencies share authority over various aspects of US anti-corruption issues.

State and local governments may have specific anti-bribery and anti-corruption agencies, although most state anti-corruption efforts reflect the federal approach, with criminal enforcement given to prosecutors and broader oversight and/or civil enforcement powers granted to state ethics agencies, inspectors general, election regulators, etc.

There are multiple anti-bribery and anti-corruption enforcement bodies in the US.

The DOJ is the most prominent criminal authority and generally prosecutes all federal crimes, including violations of the FCPA and domestic anti-bribery statutes. State prosecutors or attorneys general may also have authority to prosecute criminal violations of state anti-bribery or anti-corruption laws. The DOJ’s “piling on” policy, announced in May 2018, instructs DOJ employees to co-ordinate with one another and with other domestic and foreign authorities to avoid “a risk of repeated punishments that may exceed what is necessary to rectify the harm and deter future violations”.

The SEC, which is generally charged with administering federal securities laws, civilly enforces violations of the FCPA involving US securities issuers. The CFTC (the federal commodities regulator) has also claimed authority to take civil enforcement actions based on foreign corruption impacting US commodities markets and entities trading on those markets.

Domestic anti-bribery and anti-corruption laws are civilly administered by a wide variety of agencies and authorities. For example, at the federal level, the Department of Justice’s civil division may civilly enforce aspects of federal ethics laws (eg, the Ethics in Government Act). The Office of Special Counsel and the Office of Government Ethics, as well as agency- or branch-specific ethics bodies, also play a role in formulating, administering, and enforcing anti-corruption laws and regulations. Generally speaking, states have similar bodies that govern state government functions.

There are other civil enforcement agencies that, although not specifically charged with enforcing anti-corruption or anti-bribery laws, have authority over related areas of law that anti-corruption practitioners may wish to note. For example, the Federal Election Commission pursues civil penalties against corporations that donate to political campaigns in violation of federal campaign finance laws.

The process of self-disclosure and/or applying for co-operation credit is likely to be highly fact-specific and varies from one agency to another. Reporting violations of the FCPA to the DOJ or SEC, for example, may involve a written or oral outreach to the relevant personnel at DOJ or SEC Enforcement Division following an internal investigation. Ongoing co-operation may require providing documents or witnesses to the enforcement agency, making presentations to the enforcement agency, and providing estimates of the scheme’s impact (eg, the company’s gains or losses arising from a corruption scheme).

As discussed above, US authorities have extensive discretion to grant defendants credit for self-reporting and other forms of co-operation, up to and including declining to bring enforcement actions entirely. 

US enforcement agencies also have discretion to resolve violations of law through negotiated agreements. These agreements account for the vast majority of criminal resolutions in the US. There are three main types of negotiated agreements: non-prosecution agreements (NPAs), deferred prosecution agreements (DPAs), and plea or settlement agreements.

  • NPAs – in NPAs, the agency agrees not to prosecute on the condition that the individual or company will co-operate with the agency in its investigations of other individuals or entities and abide by other conditions (fines, monitorships, etc).
  • DPAs – the agency defers filing charges, sometimes indefinitely, based on the defendant’s compliance with certain conditions. Importantly, neither DPAs nor NPAs require a defendant to admit wrongdoing. This can be an important point, as it may affect a defendant’s potential civil liability to private parties.
  • Plea/settlement agreements – the agency files charges and reaches an agreement with the defendant to end the enforcement action after it has already begun. As part of these agreements, the agency may agree to dismiss one or more of the charges, which often reduces the penalty the defendant will face. 

State and federal criminal prosecutors all have the authority to enter into plea agreements. DPAs and NPAs are available at the federal level and may be available in some states, depending on local laws and the powers of the relevant agency. Regardless of the precise form, negotiated resolutions are extremely common in most, if not all, US enforcement contexts. Negotiated resolutions (especially corporate resolutions) often include features such as:

  • a fixed term of years during which the defendant must comply with the terms of the agreement or risk the government pursuing a formal action;
  • monetary penalties;
  • obligations to cease ongoing violations, remediate harm caused to victims, and improve internal processes to prevent future violations;
  • reporting requirements (eg, the company must report any violations of law or the negotiated resolution directly to the enforcement agency); and
  • often, compliance monitors, who are appointed as neutral third parties to oversee the defendant’s compliance with the law and the agreement, report to the government on the defendant’s activities, and review and audit the defendant’s activities.

Plea agreements are used in criminal cases and require the defendant to acknowledge guilt. Pleas must be approved by a judge and result in the entry of a conviction against the defendant. In practice, courts rarely modify or reject plea agreements proposed by the parties, but it is possible for them to do so.

Civil regulators like the SEC use settlement agreements to the same effect. A settlement agreement does not necessarily require an admission of liability or wrongdoing (although the regulator may demand one). Nor does a settlement agreement necessarily need to be approved by a court or automatically result in the entry of a judgment against the defendant in the same way that a plea agreement results in a conviction.

See 3.2 Geographical Reach of Applicable Legislation. US enforcement agencies’ jurisdiction generally reaches as far as the statutes they enforce. Civil regulators’ subject-matter jurisdiction is generally more circumscribed than that of criminal authorities. For example, the SEC can only take civil enforcement actions based on conduct affecting US securities issuers or their personnel, the CFTC can only civilly enforce laws relating to US commodities markets, and the DOJ can enforce criminal violations affecting either securities or commodities markets.

Landmark Investigations and Decisions


In March 2023, the DOJ filed a superseding indictment against Samuel Bankman-Fried, the former founder and CEO of the bankrupt cryptocurrency exchange FTX. The indictment added a charge of conspiracy to violate FCPA’s anti-bribery provisions in connection with alleged cryptocurrency payments to Chinese officials. After a dispute with defence counsel, the DOJ agreed to sever the FCPA charge and proceed to trial on other criminal charges, leading to a conviction in November 2023. A trial on the FCPA charge is scheduled for March 2024.


In May 2022, Glencore paid USD1.5 billion to US, UK, and Brazilian authorities to resolve investigations that included FCPA and market manipulation allegations arising from more than USD100 million in payments to foreign officials in various African and Latin American countries. As part of the US resolution, Glencore agreed to a three-year compliance monitor in connection with the FCPA resolution and a separate three-year compliance monitor in connection with the market manipulation resolution.

Credit Suisse

In October 2021, Credit Suisse paid USD475 million to US and UK authorities to resolve investigations that included FCPA, securities fraud, and wire fraud allegations arising from USD2 billion in loans to state-backed tuna fishing ventures in Mozambique. As part of the US resolution, a Credit Suisse subsidiary pleaded guilty in federal court to criminal conspiracy to commit wire fraud. In addition, as part of the UK resolution, Credit Suisse agreed to provide USD200 million in debt forgiveness to Mozambique. 

Domestic Corruption Statutes

There have also been high-profile developments involving domestic corruption statutes in recent years, including:

  • a September 2023 federal indictment of US Senator Robert Menendez for allegedly accepting bribes, including cash and gifts, in exchange for using his political influence to benefit the Government of Egypt in violation of US bribery, fraud, extortion, and foreign agent laws; and
  • a May 2023 decision by the Supreme Court to reverse the conviction of a top aide to the former Governor of New York following that aide’s conviction for taking bribes while he was working for the former governor’s office and re-election campaign.

Enforcement Trends

The 2022 annual report of the DOJ’s Fraud Section states that the FCPA Unit charged 22 individuals in 2022, 18 of whom were convicted by guilty plea or after trial; in the same year, the FCPA Unit at the Fraud Section reached three corporate resolutions involving the imposition of USD1.36 billion in global fines, penalties and forfeiture.

FCPA resolutions have included some of the biggest monetary penalties in US criminal or regulatory history. Many penalties have reached into the hundreds of millions of dollars. 

Individuals, too, can pay a substantial monetary fine or serve prison sentences for bribery or corruption schemes. Typical prison terms for these crimes are often less than ten years but have ranged as high as 15 years for an FCPA violation and longer for domestic statutes.

Anti-bribery and corruption enforcement in the USA is routinely subject to assessment by the US government itself, as well as civil society organisations and international institutions.

OECD Evaluation

In November 2020, the OECD released an updated evaluation of US anti-bribery and corruption enforcement – the first such update since 2012. The OECD generally commended the USA’s anti-bribery and corruption programmes, noting its ability to “conclude foreign bribery matters comprehensively with effective, proportionate, and dissuasive sanctions, while also providing legal certainty to the companies involved”, but also included a few potential future improvements.

Among the USA’s strengths, the OECD stated that US enforcement authorities have increasingly addressed the “demand side” of bribery by charging foreign public officials and their associates with money laundering or other offences when they use US financial institutions in corrupt schemes or otherwise fall under US jurisdiction. The OECD positively noted other policies and trends in anti-bribery prevention and enforcement, including the US commitment to co-ordinating multi-jurisdictional investigations with agencies in other countries.

While the OECD’s report was largely positive, it nonetheless provided recommendations in three key areas.

  • Detection of foreign bribery – the OECD recommended that the USA:
    1. report on the sources of allegations leading to foreign bribery investigations; and
    2. enhance protections for whistle-blowers.
  • Investigation and prosecution of foreign bribery – the OECD recommended that the DOJ and SEC continue to harmonise their enforcement approaches and review the effectiveness of the DOJ’s Corporate Enforcement Policy.
  • Sanctions – the OECD recommended that the USA collect data on debarment in foreign bribery cases and encourage public contracting authorities responsible for those granting arms export licences to implement reviews of debarment lists of multilateral financial institutions.

The European Court of Human Rights and GRECO

In April 2021, the Council of Europe Directorate General Human Rights and Rule of Law Corruption – Group of States Against Corruption (GRECO) issued a report assessing anti-corruption laws and practices in the USA. The report noted areas where the USA had made progress since previous evaluations, but identified additional points for improvement. For example, it recommended additional protections against undisclosed conflicts of interest for congressional representatives.

US government authorities frequently revise enforcement policies and priorities, which can affect the scope and practice of federal anti-corruption laws. Significantly, in recent years, DOJ has adapted policies to incentivise voluntary self-disclosure, including a revised policy that a company will be eligible for declination of prosecution if it meets the requirements of voluntary self-disclosure, full co-operation, and remediation, and has no aggravating circumstances. Most recently, in an October 2023 speech, Deputy Attorney General Lisa Monaco expanded this policy to include mergers and acquisitions, which can generate particular risk when companies fail to identify bribery and corruption risks during the due diligence process. Under a new Safe Harbor Policy, acquiring companies can avoid criminal charges if they voluntarily self-disclose misconduct at the acquired company within six months of the merger or acquisition, fully co-operate with the investigation, complete timely and appropriate remediation within one year of the closing, and pay restitution or disgorgement, where it is appropriate to do so. This update will be incorporated into the Justice Manual in the future.

Freshfields Bruckhaus Deringer LLP

700 13th Street, NW
10th Floor
DC 20005-3960

+1 202 777 4577
Author Business Card

Trends and Developments


Harris St. Laurent & Wechsler LLP (HSW) is a boutique litigation firm based in New York City. HSW represents defendants in New York federal criminal court, as well as during SEC, CFTC and FINRA investigations. Its white-collar criminal and regulatory defence group draws upon the firm’s deep experience representing individuals in employment and commercial litigation in the financial sector. The firm’s plaintiffs’-side employment practice stands ready to assist with negotiations involving employment retention and separation that often proceed simultaneously with a criminal or regulatory investigation. Investigations and criminal cases also impose a severe financial burden on clients, and the firm places emphasis on, and has regularly been successful at, obtaining advancement and indemnification of legal fees from employers and former employers, as well as insurance coverage. The team also helps clients protect professional licences and their standing within their industries.


With one notable exception, the anti-corruption efforts by the Biden Administration have generally fallen short of the robust expectations set by administration officials after Biden’s election.

While Biden Administration officials have continued to emphasise the centrality of anti-corruption efforts, the total number of white-collar prosecutions remains sharply down compared to ten or even five years ago, with fraud in federal programmes remaining the largest source of federal white-collar crime prosecutions. The total number of white-collar prosecutions is at its lowest since the Reagan Administration. The total number of federal criminal prosecutions is slightly down as well, along with crime rates in several major categories.

In other developments, regulators have stepped up enforcement in other areas, particularly cryptocurrencies, with the high-profile conviction of Samuel Bankman-Fried, and several other significant prosecutions looming. The IRS received a substantial increase in its budget for enforcement, with a likely focus on audits of high net worth individuals. After two consecutive down years for FCPA prosecutions, there were significant increases in FCPA prosecutions by the DOJ and SEC, as well as a substantial increase in the monetary sanctions awarded. Finally, the Supreme Court continues to push back against the expansion of theories of prosecution in governmental corruption cases, with reversals of convictions in two high-profile cases.

Trends to Watch

Securities & Exchange Commission increases the number of enforcement actions and aggressively expands into cryptocurrency space

The SEC filed 784 enforcement actions in fiscal year 2023, which is a 3% increase from the previous year. This includes 501 original enforcement actions, which is an 8% increase from the previous year. The SEC obtained over USD4.9 billion in penalties and disgorgement, which is the second-highest amount in its history. The SEC also filed 162 “follow-on” administrative proceedings seeking to bar or suspend individuals from certain functions in the securities markets based on criminal convictions, civil injunctions, or other orders and 121 actions against issuers who were allegedly delinquent in making required filings with the SEC.

The SEC aggressively increased enforcement efforts in the cryptocurrency space, sparking a not-so-friendly rivalry with its fellow regulator the CFTC, which was also active in the fast-developing cryptocurrency markets.

After an initial series of prosecutions between 2020 and 2022 in which the SEC focused either on low-level individuals (SEC v Wahi) or on relatively small issuers of cryptocurrency (SEC v Ripple), in fiscal year 2023, the SEC took aim at some of the largest players in the cryptocurrency space.

Along with the DOJ, the SEC brought charges against Samuel Bankman-Fried (SBF), one of the most well-known and wealthiest persons in the crypto space, the founder of both FTX, a cryptocurrency exchange, and Alameda Research, a cryptocurrency trading firm. After both those entities collapsed among allegations of fraud and billions of dollars in missing customer funds in November 2022, the SEC and DOJ brought charges, with SBF being convicted by a jury in a criminal case brought by the US Attorney’s Office for the Southern District of New York in November 2023.

In February 2023, the SEC filed charges against Do Kwon, and Terraform Labs, whose algorithmic stablecoin Terra (and related LUNA cryptocoins) collapsed in May 2022. The SEC charged that Do Kwon and Terraform had sold investors on their ability to profit from Terraform Labs’ efforts, the hallmark of a security, and then had deceived those investors about the adoption of the cryptocurrency by a South Korean company and about the stability of the alleged stablecoin.

The SEC also brought charges for the first time against major cryptocurrency exchanges. In June 2023, the SEC brought charges against Coinbase, the largest trading platform for cryptocurrency in the United States. In its complaint, the SEC alleged that numerous cryptocurrencies traded on the exchange were securities and, as a result, Coinbase was running an unlicensed securities exchange.

Also in June 2023, the SEC brought charges against Binance, the world’s largest trading platform for cryptocurrencies, its US subsidiary, Binance US, and its founder, Changpeng Zhao. The SEC alleged that while publicly proclaiming that US customers could not trade on its platform (in order to avoid compliance with US securities laws, as well as AML and KYC rules) Binance had put into place work-arounds that allowed high net worth individuals to access its platform from the United States.

The SEC also brought several other actions, including against Kraken, Celsius, and Nexo. Kraken and Nexo entered into multi-million dollar settlements with the SEC, while Celsius, having declared bankruptcy in July 2022, was hoping to exit from bankruptcy in November 2023. Celsius’s founder and former president Alex Mashinsky is facing criminal charges and a host of civil lawsuits. Notwithstanding the earlier settlement, the SEC brought another round of charges against Kraken in November 2023, alleging it was running an unregistered securities exchange.

The Commodities and Futures Trading Commission continued its active engagement in the crypto space, imposing more than USD2.5 billion in fines as part of 96 different investigations in FY 2023, with cryptocurrency investigations representing almost 50% (47 of 96) of its enforcement actions. The CFTC brought actions against SBF, FTX, and Celsius, which were all also targets of the SEC, and also brought an action against Ooki DAO, alleging that Ooki DAO had operated as an unregistered commodities market. Significantly, the CFTC won its argument in court that the DAO, or decentralised autonomous organisation, was a “person” for the purposes of the Commodities Exchange Act that could be civilly prosecuted.

The CFTC obtained USD3.4 billion civil settlement from South African crypto trading platform Mirror Trading and its CEO, following allegations that Mirror Trading had engaged in a multi-level marketing scheme based on bitcoin trading that had defrauded more than 23,000 investors.

The CFTC and the SEC continued to jockey for position in the cryptocurrency space. In a Congressional hearing in December 2022, both SEC Chair Gary Gensler and CFTC Chair Rostin Benham pressed for their respective agencies to be the primary regulator for cryptocurrency.

The issue remains very much undecided, with a divided Congress generally unable to pass legislation. The Responsible Financial Innovation Act (RFIA) was reintroduced in the Senate in July 2023. While the bill would define as “securities” under the ’33 and the ’34 act cryptocurrencies that provided certain equity- or bond-like rights to their holders, the CFTC would be the primary regulator for both “digital assets” and “digital asset exchanges”. That same month, a House Committee advanced the Financial Innovation and Technology for the 21st Century Act, a bill which would similarly divide responsibilities between the SEC and CFTC, but would also create a separate jurisdiction for stablecoins vested in the Comptroller of Currency, the Federal Reserve, or state regulators depending on the characteristics of the stablecoins. As a result, the legislative future for cryptocurrency remains highly uncertain in the United States.

The Department of Justice continued to bring actions in the cryptocurrency space as well in 2023. As it had in the US v Wahi case, the DOJ has focused on theories of prosecution that do not depend on the characterisation of the underlying crypto as a security or a commodity. In the US v Bankman-Fried case discussed above, SBF was convicted of seven counts, including substantive wire fraud, conspiracy to commit wire fraud, and money laundering, none of which depended on whether, for example, the underlying crypto assets were securities.

In November 2023, both Binance and its founder Changpeng Zhao, plead guilty to criminal counts of money laundering, with Binance agreeing to pay USD4.3 billion in fines and other penalties and Zhao agreeing to pay USD50 million and to step away from running Binance.

Corporate prosecutions continue to emphasise corporate responsibility

In January 2023, Assistant Attorney General for the Criminal Division Kenneth A Polite, Jr announced revisions to the Department of Justice Criminal Division’s Corporate Enforcement Policy. The Corporate Enforcement Policy – which was formerly known as the FCPA Corporate Enforcement Policy – expressly expands its application to all corporate criminal matters handled by the Criminal Division. The revisions are aimed at further incentivising companies to develop and maintain robust corporate compliance programmes, to self-disclose corporate misconduct, to co-operate with government investigations, and to take appropriate corrective action without government intervention.

Under the policy, companies that self-disclose misconduct are eligible for declinations or non- or deferred prosecution agreements. For companies that voluntarily self-disclose misconduct, fully co-operate with an investigation, and timely and appropriately remediate, but do not receive a declination under the Corporate Enforcement Policy, the DOJ will recommend a reduction in the company’s fine of 50% to 75% from the low end of the Guidelines range, provided the company is not a criminal recidivist. Recidivists will be eligible for a similar reduction, but generally not from the low end of the range. 

Companies that do not voluntarily self-disclose, but engage in extraordinary co-operation and remediation, will be eligible for a fine reduction of up to 50% from the low end of the applicable guidelines range. However, there will be no presumption of entitlement to such a reduction, and the most substantial reductions will be reserved for only the “most extraordinary levels” of co-operation and remediation. Recidivists will again be eligible for a similar reduction, but generally not from the low end of the Guidelines range.

How this plays out in practice remains to be seen. Self-reporting criminal acts by employees is not required by law in the United States. Further, company counsel can generally invoke the attorney-client privilege to shield decision-making on such issues, sparing companies from a potentially embarrassing revelation about a decision not to report. As a result, these decisions are generally driven by business considerations, with the potential of a reduced punishment following a self-report weighed against expense, public relation consequences, and other difficulties associated with notifying the government of activity that may never otherwise come under scrutiny.

It is also worth noting that this is the third year in a row where some similar policy or change in policy has been announced by the DOJ, but as noted above, white-collar and corporate prosecutions continue to decline.

IRS enforcement receives substantial budget increases

After numerous previous attempts, in August of 2022, the IRS finally received a long-promised increase to its enforcement budget as part of the Inflation Reduction Act. An additional USD80 billion over ten years has been slated, to the end of recapturing an estimated USD600 billion in annual evaded taxes. Practitioners may expect significantly closer scrutiny of personal tax returns of high net worth individuals in the years to come as a result.

However, this USD80 billion was a projection over ten years, with only USD2.8 billion to be spent in the first year, 2023, and USD5.4 billion in the second year, 2024. Moreover, the IRS has yet to identify how much of this additional budget would go to additional staff and how many of them would be assigned to enforcement. Finally, and perhaps most importantly, House Republicans in 2023 put forward four different bills that would have eliminated between USD71.5 billion and USD21.4 billion from this increased IRS budget. Reducing or eliminating this increase in the IRS budget seems to be a continuing priority for House Republicans and increased enforcement may well be tied to the outcomes of elections in the coming years.

Foreign Corrupt Practices Act prosecutions reverse a decline

The FCPA is prosecuted by the DOJ and SEC to prevent US companies and individuals from engaging in corruption of foreign governmental officials to advance their interests. Applying to issuers of securities on US exchanges (including ADRs) and US-based persons and companies, the FCPA contains anti-bribery sections, typically enforced by the DOJ, and accounting and record-keeping provisions applicable to issuers of US securities, typically enforced by the SEC.

After relatively robust enforcement in 2018 and 2019 with 39 and 54 combined DOJ/SEC actions in those years respectively, there were 15 such actions in 2021. However, 2022, and the first half of 2023, have seen significant increase, with 37 combined DOJ/SEC actions in 2022 and 21 in the first ten months of 2023.

Supreme Court eliminates “right to control” theory and limits “honest services” fraud prosecutions

In 2010, in United States v Skilling, the Supreme Court limited the “honest services” prong of the federal fraud statutes to what it considered to be the “core” of public corruption; ie, the classic quid pro quo exchange of money or other items of value for political favours.

In 2020, a unanimous Supreme Court vacated public fraud convictions arising from actions by New Jersey government officials to cause traffic delays to punish a political opponent in Kelly v United States (known as “Bridgegate”) because the defendants had not obtained or tried to obtain “property”, at least not in any recognisable form.

Continuing that trend, in July 2023, the Supreme Court decided a pair of public corruption cases that continued to limit the application of federal criminal statutes to public corruption. The two cases, Ciminelli v United States and Percoco v United States, sharply restrict prosecutors’ use of federal fraud statutes to criminalise what could be considered political corruption.

In Ciminelli, the Supreme Court unanimously disavowed the “right to control” theory. The Court emphasised that the theory “cannot be squared with the federal fraud statutes, which are ‘limited in scope to the protection of property rights.’” The “right to control” one’s property is not itself “an interest that had ‘long been recognized as property,’” and is inconsistent with “traditional concepts of property”. In Percoco, the Supreme Court took a less sweeping position, finding that Percoco himself was not a person who owed a fiduciary duty to the public (as the former chief of staff to then Governor Cuomo), and accordingly holding that Percoco could not be convicted of “honest services fraud” based on that individual’s own duties to the public. But the Supreme Court found that a private person could owe such duties under an agency theory, and left open the door for other potential bases of such liability.


2023 saw several changes to the regulatory and enforcement environment for white-collar investigations and enforcement actions, and 2024 promises more of the same.

Cryptocurrency continues to draw substantial regulatory attention and enforcement both civilly and criminally. However, other areas of anti-corruption efforts are either in some form of retreat, such as public corruption, are in slow decline, such other forms of white-collar and corporate criminal prosecution, or are relatively stable, such as FCPA and tax enforcement actions, despite promises of more vigorous actions by relevant regulators.

Harris St. Laurent & Wechsler LLP

40 Wall Street
53rd Floor
New York, NY 10005

+1 646 248 6010

+1 212 202 6206
Author Business Card

Law and Practice


Freshfield Bruckhouse Deringer has a white-collar defence team that is highly skilled in advising cross-border businesses on anti-bribery and corruption risks arising anywhere in the world. The firm’s US white-collar partners, most of whom are former federal prosecutors, lead a team with more than 75 US lawyers working in close co-ordination with Freshfields offices in Europe, the Middle East, and Asia. Freshfields helps clients respond to simultaneous inquiries from the US DOJ, the US SEC and CFTC, the UK Serious Fraud Office, and other regulators, in connection with allegations of bribery and corruption. Freshfields lawyers develop multi-pronged defence strategies to navigate the varied expectations of regulators around the globe. The firm regularly conducts international anti-bribery compliance programme reviews and provides due diligence and transactional advice for some of the world’s leading investors, banks, and multi-nationals. Recent anti-corruption work has included securing the first declination with disgorgement under the DOJ’s Corporate Enforcement Policy.

Trends and Developments


Harris St. Laurent & Wechsler LLP (HSW) is a boutique litigation firm based in New York City. HSW represents defendants in New York federal criminal court, as well as during SEC, CFTC and FINRA investigations. Its white-collar criminal and regulatory defence group draws upon the firm’s deep experience representing individuals in employment and commercial litigation in the financial sector. The firm’s plaintiffs’-side employment practice stands ready to assist with negotiations involving employment retention and separation that often proceed simultaneously with a criminal or regulatory investigation. Investigations and criminal cases also impose a severe financial burden on clients, and the firm places emphasis on, and has regularly been successful at, obtaining advancement and indemnification of legal fees from employers and former employers, as well as insurance coverage. The team also helps clients protect professional licences and their standing within their industries.

Compare law and practice by selecting locations and topic(s)


Select Topic(s)

loading ...

Please select at least one chapter and one topic to use the compare functionality.