“Carbon-Copy Prosecutions”: A Multi-Dimensional Enforcement Paradigm that is Here to Stay

One emerging transnational trend in anti-corruption efforts is the phenomenon of “carbon-copy prosecutions”: when foreign or domestic Jurisdiction A files charges based on a guilty plea or charging document from Jurisdiction B. The net effect of DOJ and SEC FCPA settlement policies is that when a company enters into a negotiated resolution with U.S. enforcers, it is essentially powerless to defend against—much less deny—the factual basis on which the resolution is based. This all but ensures that a company that settles with the DOJ—or both the DOJ and SEC in parallel proceedings—will have little or no choice but to settle with U.S. and foreign authorities, should such authorities choose to exercise jurisdiction and enforce their corollary anti-corruption laws. Duplicative serial enforcement actions are now part and parcel of the enforcement landscape, despite a healthy ongoing debate over the need for, and fairness of, serial enforcements.