Issue link: https://digital.shearman.com/i/1389983
8 We discuss in detail some of the 2021 YTD substantive statutory related issues within the FCPA-specific context. FOREIGN OFFICIALS In the first half of 2021, the DOJ brought a number of conspiracy to commit money laundering charges against foreign officials. Of the thirteen individuals charged with FCPA-related violations in the last six months, nearly half were foreign officials (Bechir, Takane, Comoretto, Luzuriaga, Mendez, and Murillo). As noted by then- Assistant Attorney General Trevor McFadden in 2018, although the FCPA targets principally those who bribe rather than those who receive bribes, the DOJ can employ related criminal charges, including money laundering and obstruction of justice charges, to prosecute the recipients of illicit funds. This has perhaps led to an increased reliance on conspiracy to commit money laundering counts even when conduct that could be charged directly under the FCPA is alleged. THING OF VALUE Pactiv Evergreen, an Auckland-based packaging company, announced in its securities filings in May 2021 that the DOJ had closed an investigation into the company's potential misconduct in China. The company voluntarily disclosed that it had discovered potential violations in China last year and commenced an internal investigation. Its internal investigation concluded the potential violations were limited to the giving of gift cards of relatively small value to Chinese government officials around holiday periods. The self-disclosure of the conduct to U.S. authorities, as well as the company's remediation after discovering the practice—by discontinuing it—and the relatively small value of the payments prompted the DOJ to close the investigation without enforcement, indicating the company took all the right steps upon their discovery of the misconduct. MODES OF PAYMENT As in previous years, the use of high-risk intermediaries continues to be an issue in FCPA enforcement actions. In the Deutsche Bank enforcement action, for example, the company employed third-party business development consultants with allegedly limited oversight and due diligence over their conduct. As shown in this case, such third-party relationships have come under increased scrutiny by the DOJ and SEC and require close review by compliance personnel. The 2021 investigations also uncovered a number of financing tools used to hide the sources of funds, including the alleged use of fake consulting contracts and payments through shell companies in the Tyab case. Such disguising tactics were not universally utilized, however. In the case of the Berkman and Cherrez investigations, the bribes for the foreign officials were allegedly paid directly into bank accounts accessible by the officials.