Rachel Brewster on the Rise of Global FCPA Settlements

For the past three decades, the United States has been the dominant enforcer of laws governing corporations that bribe foreign government officials. But in recent years, that dominance has been challenged by a new enforcement model – global Foreign Corrupt Practices Act (FCPA) settlements.

Those settlements are the result of many governments prosecuting corporations for foreign bribery at the same time – usually with the United States in the lead. 

The results are blockbuster resolutions – primarily deferred prosecution agreements with major multinational corporations.

Duke Law Professor Rachel Brewster is the author of a new law review article – The Rise of Global FCPA Settlements. 

“I had previously written a number of articles on the Foreign Corrupt Practices Act where I explore why the United States has an interest in enforcing the FCPA,” Brewster told Corporate Crime Reporter in an interview last week. “The FCPA has been on the books since 1977. But it wasn’t until the very late 1990s and early 2000s that the United States really started enforcing the FCPA.”

“In the article, I lay out how the United States was trying to create a global system for enforcing the FCPA. That has two parts.”

“First, there was an expansion of the jurisdiction of the FCPA to include corporations that were listed in exchanges in the United States. That expanded the jurisdictional reach to most of the major foreign multinational corporations that U.S. multinational corporations would be competing with. That would level the playing field so that the FCPA wouldn’t just be applied to U.S. corporations, but against American corporations and their international rivals.” 

“And the second piece was to get other major exporting states to sign onto the idea that foreign bribery should be criminal and try to cement the norm among our partners that this was not a legitimate business practice and that they would be willing to aid us in prosecuting their national corporate champions – Airbus, Oderbrecht, for example.”

“Some of my earlier work has been about that. This article is a follow up piece about the rise of these global FCPA settlements.”

“The vast majority of FCPA cases are still unilaterally prosecuted by the United States. That means that the Department alone, or sometimes the Department with the SEC, will bring cases against corporations, saying there has been a violation of the FCPA. But all of these cases are transnational, even if it is just purely an American corporation, they are still bribing overseas. Much of the criticism of the FCPA was that it was not only extraterritorial, but unilateral, that it was just the United States enforcing its laws.” 

“What started happening in the later parts of the Obama administration, but really took off in the first Trump administration and then the Biden administration, was the rise of these global settlements.” 

“And it wasn’t that these countries were all bringing the prosecutions together. They are not joint prosecutions. They are separate, parallel or sequential prosecutions, where numerous states decide – we are going to investigate this, we are going to share our information with one another and we are going to each bring our own prosecution against this corporation.” 

“They become global settlements in that they are coordinated in some way. The states are talking with each other and they coordinate aspects of the resolution. For instance, the most obvious coordination of the settlement is the willingness of the United States to credit the corporation with penalties it had paid to other states. So for example in the Oderbrecht case, the U.S. kept 10 percent of the penalties, the Swiss kept 10 percent of the penalties and the Brazilians got 80 percent of the penalties.” 

“The Department of Justice said – under the Sentencing Guidelines, this should be the penalty, but we won’t take all the penalty amount – we’ll credit the majority of it to the Brazilians.”

“Whether there is a monitor becomes an issue. If there is a monitor, will it be a Brazilian monitor or a U.S. monitor? As a result of this kind of cooperation, the United States was actually able to coordinate with other states.”

“I find this idea that the United States is engaging in global settlements very interesting. Most of the major blockbuster FCPA cases – the top ten settlement amounts – eight out of the top ten were global settlements and fourteen out of the top twenty were global settlements.”

“I’m fascinated that other states want to become involved. Earlier, we had a delegation model. Other counties would say – the U.S. is investigating this FCPA case, we might help with the investigation, but we are not going to pour in resources ourselves. Why did they change their minds? Why did they decide to begin to pour in resources? Why is the United States interested in it? Why are we willing to credit other states with other penalties, instead of putting those penalties into the U.S. Treasury?”

“What does this mean in terms of informal global cooperation? There is no equivalent of an OECD treaty or U.N. Convention Against Corruption treaty. There is no multilateral organization that we have bound ourselves to. But there clearly seems to be some rules of the road developing about when the U.S. will engage in global settlements, what we want global settlements to look like and when we credit other nation states with penalties and when we don’t.”

  “In law, we call this comity. It is something that happens occasionally in antitrust law as well. Before, when the United States was doing all of the prosecution of foreign bribery, when we the dominant prosecutor and other countries were not doing as much – people would call that a negative comity. The United States was doing it all and everyone else basically ceded the field to us and didn’t interfere.” 

“But now it looks like we are moving toward a different type of international cooperation, something that I have started calling coordinated comity. We didn’t commit to anything, but we have established informal rules for how states cooperate.”

“Also, the Department of Justice in the first Trump administration adopted what is called the anti piling on memo. That formally allowed crediting. That memo in some ways just formalized earlier experimentation with global settlements. And then internationally, other countries had to develop mechanisms that worked like deferred prosecution agreements or guilty pleas. In other countries, the rule had been that corporations had to go to trial. But that wasn’t going to work for a global settlement.” 

“France, Germany, Switzerland, the UK and Brazil, developed their own mechanisms that were essentially like our deferred prosecution agreements that made these global settlements possible.” 

How do you see things panning out under the second Trump administration?

“The Trump administration has taken a very different tack to the Foreign Corrupt Practices Act (FCPA). There was an early executive order suspending the application of the FCPA. Then a new enforcement memo came out in June 2025. It doesn’t discuss global settlements at all. And as far as I know, there have been none under this administration. But as far as I know, the anti-piling on memo hasn’t been withdrawn.” 

Have there been any global settlements under this administration?

“Not that I know of.” 

There is a general consensus that the Trump administration is pulling back on FCPA enforcement. Do you see other governments stepping into the breach and taking a lead prosecutorial role where previously the Justice Department had a lead role?

“It’s too early to tell. The new enforcement guidance is problematic to international cooperation. The new guidance indicates that the Department is interested in cases where  companies have taken away business from U.S. companies through bribery. It seems that the new emphasis is on vindicating the rights of American companies to overseas contracts, particularly when foreign companies have bribed. That is a notable difference from past enforcement.” 

“In the past, the Department and the SEC have tried to be even handed. Even though some of the largest awards are against foreign corporations, the majority of cases have been against American corporations. Both the Department and the SEC tried to emphasize that they were not being nationalistic, that they were bringing the cases as they came in – against both American and foreign corporations. And that allowed global settlements to happen. Because the United States brought so many FCPA cases against both American and foreign companies, the foreign companies were willing to help the United States in the investigations.” 

“But when you have the Trump administration saying they are most interested in prosecuting companies that take opportunities away from American corporations, that looks biased. It does not look even handed. And foreign governments are saying – why should we help you with investigations, why should we coordinate with you. All we are doing is helping you promote American companies against foreign companies.”

If you look at the largest FCPA settlements, nine out of ten of them are against foreign companies. And the foreign countries and companies would argue that the Americans would target foreign companies over American companies.

“They said that. And many times, the French in particular, called it American industrial policy. Foreign countries were not excited when their companies were in the crosshairs of the Department of Justice. But the Department brought cases against many American companies.”

“In my article, I cite studies showing that American firms are more likely to be the targets of Department of Justice or SEC FCPA prosecutions. One empirical study of FCPA resolutions from 1978 to 2018, found that 65% of all cases were brought against domestic firms. But the largest penalties have been against foreign corporations. There are many reasons why foreign companies get hit with larger penalties.” 

“Many times foreign firms do not have a culture of cooperating with the government, whereas U.S. firms do. Foreign firms will sometimes refuse to cooperate and so when the Department does go after them, they get far fewer cooperation credits. Also they self-report at a much lower rate. So often, they end up getting much higher penalties.” 

“You had asked me whether I thought other countries were going to step up their enforcement in light of Trump administration policies. I don’t see foreign law enforcement cooperating with the U.S. government now as much on FCPA cases, whereas I do think they would have done that in the past.” 

“But the British, French and Swiss governments have announced that they have formed an international anti-corruption task force so they can pool their resources and support anti-corruption investigations.” 

“But many of these foreign countries started investing more resources because the United States was the leader and because they wanted to be able to keep up and have a role if the FCPA was going to be used against one of their corporations. If it just looks like now the United States is doing less FCPA cases period, then I see many of these countries saying – we don’t need to invest the same level of resources. We are not going to shut down these offices but we have our own budget crises. I don’t see them pushing a lot more money to build up their anti-corruption capacity.” 

[For the complete Interview with Rachel Brewster, see 40 Corporate Crime Reporter 11(12), March 16, 2026, print edition only.]