The Rise of Global FCPA Settlements

Authors

Rachel Brewster, Duke Law SchoolFollow

Document Type

Article

Publication Date

2025

Abstract

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This Article analyzes the recent rise of a new enforcement model: the global FCPA settlement, where multiple governments enter into parallel deferred prosecution agreements or other non-trial resolutions with corporate entities. This enforcement model is now the principal form for concluding “blockbuster” FCPA cases and has significant implications for the evolution of the transnational anti-bribery law regime.

This Article argues that the rise of global settlements results from (1) a greater demand by foreign governments to be involved in foreign bribery resolutions when their national firms are on trial and (2) American prosecutors’ willingness to accommodate this demand when it results in more effective prosecutions (i.e., new cases, more claims, or stronger evidence). This Article contends that the rise of global FCPA settlements marks a significant shift in the international anti-bribery enforcement regime, transitioning from a negative comity to a coordinated comity regime. The global resolution model addresses some of the concerns of the negative comity regime by permitting multiple governments to have a voice in negotiating the level of the penalties, the distribution of the penalties, and any structural reforms that the firm will be required to adopt. It also can potentially increase the effectiveness of the enforcement regime by expanding the geographic scope of the investigations and quality of evidence. This Article additionally discusses the importance of these developments to the Trump Administration’s executive order on FCPA enforcement and the June 2025 DOJ enforcement guidelines.

Citation

Rachel Brewster, The Rise of Global FCPA Settlements, 104 Texas Law Review 299-371 (2025)