Thursday, October 14, 2010

Statistics of Note

Fulbright & Jaworski's Annual Litigation Trends Survey Report is always an interesting read and this year's report (available for download here) is no exception.

The report compiles survey data from "senior corporate counsel on their experiences and opinions regarding various aspects of litigation and related matters." "There were 403 participants in the Litigation Trends Survey of 2010, including 275 in the U.S. and 128 in the U.K. (a record high)." Approximately 50% of the survey participants were employed by a company with gross revenues of over $1 billion.

Some statistics that caught my eye.

"Companies that have engaged outside counsel to assist with a corruption or bribery investigation in the past 12 months (including, but not limited to, FCPA in the U.S. and equivalent in U.K.)"

12% U.S., 26% U.K.

Surprising on both fronts. The spike in the U.K. rate 26% in 2010 vs. 12% in 2009 is not surprising given the increased attention to bribery and corruption issues in the U.K. as the Bribery Act nears implementation.

According to the survey, "a quarter of manufacturers have conducted bribery/corruption investigations" and this sector "continues to lead other industries, as it has for the past two years."

"Companies that have engaged in due diligence for bribery or corruption (including FCPA matters) relating to a merger, acquisition or other business transaction with a foreign country in the past 12 months."

17% U.S., 28% U.K.

Again surprising on both fronts. FCPA-specific due diligence in M&A and other cross-border transactions is frequently preached by the enforcement agencies, but apparently companies are not getting the message, or if they are, they don't view FCPA specific due diligence as a value added exercise.

This next statistic is also surprising, particulary given (what at least appears to be from media and other reports) high anxiety levels as to the upcoming U.K. Bribery Act. I like how Miller & Chevalier states it in its recent FCPA Autumn Review 2010 (see here) - the U.K. Bribery Act "about which so much is being said and written" an issue already the "subject of lively debate and ominous forebodings" and a topic "commanding considerable commentary and concern."

"Do you foresee changes in the way your company operates due to the new U.K. Bribery Act?"

89% no - U.S.

65% no - U.K.

The following non-FCPA statistic was also interesting.

"A quarter of the companies that have conducted an internal investigation reported the matter to a regulatory agency, as a result of the investigation." I suspect that if this topic was FCPA specific the percentage would have been higher than 25%.


As to FCPA, Inc. issue generally, this recent article in The Lawyer by Matt Byrne caught me eye. It discusses Shearman & Sterling's "radical strategy" to boost litigation related revenue. The article quotes N.Y. based partner Herb Washer as saying that, among other areas, FCPA-related matters are acting as a catalyst for Shearman’s litigation push. “FCPA enforcement has become an explicit priority of the Department of Justice,” says Washer. “There’s not only a greater number of cases but the fines are trending upwards. There’s very big money at risk and companies are spending big money to defend themselves against allegations. There’s no doubt this is a significant driver for the growth of our practice and many of our competitors.”

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