Companies and individuals that admit to violating the U.S. Foreign Corrupt Practices Act (FCPA) for acts committed in Thailand risk criminal prosecution in Thai courts. When defendants in FCPA cases seek negotiated resolutions to their charges in the United States, they generally enter into guilty pleas, deferred prosecution deals, or non-prosecution agreements. By doing so, defendants formally admit to a set of facts and illegal conduct. Although the admissions are made as part of an investigation in the United States, they can potentially be used as the basis for a criminal case in Thailand. This legal phenomenon is known as a “carbon copy” prosecution.
The risk of carbon copy prosecutions is significant because the vast majority of FCPA cases are resolved by negotiated resolution. In 2014, the U.S. Department of Justice (DOJ) brought seven FCPA enforcement actions against corporate defendants. Five of these resulted in non-prosecution or deferred prosecution agreements and two ended with plea agreements. The Securities and Exchange Commission, which is the United States’ other FCPA enforcement arm, also brought seven corporate cases in 2014 (some related to the DOJ cases), with all seven resulting in settlements. Since 2009, 50 FCPA cases have been settled by the DOJ.