One of the many challenges companies face when assessing their Foreign Corrupt Practices Act (“FCPA”) liability is determining whether a potential business partner constitutes a “foreign government official” under the FCPA. From a definitional perspective, the FCPA is far from a model of clarity on this point. See 15 U.S.C. § 78dd-2(h)(2)(A). By way of example, … Continue Reading
Last month, attorneys from around the world descended upon Buenos Aires to tango with criminal justice and anti-corruption experts at the International Bar Association’s 22nd Annual Transnational Crime Conference. Conference highlights included remarks from distinguished members of the Argentine government, including the Minister of Justice and Human Rights, President of the Financial Information Unit, and … Continue Reading
In United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018) the Second Circuit held that a non-resident foreign national cannot be criminally liable for aiding and abetting or conspiring to violate the FCPA unless the government can establish that such an individual acted as an agent of one of the categories of persons subject … Continue Reading
On December 26, 2018, the Securities and Exchange Commission (“SEC”) announced a settlement with communications technology firm Polycom, Inc. (“Polycom” or the “Company”) for violating the books and records and internal accounting controls provisions of the Foreign Corrupt Practices Act (“FCPA”) in connection with a scheme to bribe Chinese government officials. Under the settlement, Polycom … Continue Reading
Last month, a D.C. federal judge ordered the Department of Justice to turn over the names of prospective monitors nominated to oversee the corporate compliance programs of fifteen companies found to be in violation of the Foreign Corrupt Practices Act (FCPA). While recognizing that these individuals have “more than a de minimis privacy interest in … Continue Reading
As cybersecurity concerns move more companies to batten down employee use of external email accounts and other websites through blocking software and other measures, the DOJ’s recently issued FCPA Corporate Enforcement Policy—now incorporated in the U.S. Attorneys’ Manual—unequivocally states that companies seeking full cooperation credit from DOJ in FCPA cases must ensure that employees are … Continue Reading
The DOJ recently took another step to encourage corporate self-disclosure for FCPA violations through the announcement of a new FCPA Enforcement Policy based on the eighteen month FCPA Pilot Program. The DOJ’s Pilot Program proved to be successful—the FCPA Unit received over 30 voluntary disclosures in the 18-month period the Pilot was in place—compared to … Continue Reading
In a controversial ruling, London’s High Court has held that interview notes and other documents created by outside legal counsel and forensic accountants as part of an internal investigation into foreign bribery allegations are not protected by the legal professional privilege. While the appeals process is already underway, the May 8th decision by the Honourable … Continue Reading
As Mexico works towards implementing its new National Anti-Corruption System, the largest foreign bribery case in history, arising out of Brazil, serves to highlight historic weaknesses in Mexican anti-corruption efforts and just how necessary the National Anti-Corruption System will be to help combat corruption in Mexico. The Odebrecht and Braskem Plea Agreement In December 2016, … Continue Reading
President Trump’s 2012 criticism of the Foreign Corrupt Practices Act (FCPA) is well-documented. At the time, news outlets reported that business mogul Trump commented on Wal-Mart’s alleged facilitation payments in Mexico to obtain various licenses and permits, opining that FCPA was a “horrible law and it should be changed,” and adding that it put U.S. … Continue Reading
The U.S. Department of Justice (“DOJ”)’s Criminal Fraud Section recently issued guidance for corporate compliance programs in a document titled Evaluation of Corporate Compliance Programs (“Fraud Section Guidance”), which reflects a number of notable differences from prior guidance on similar issues. The Fraud Section Guidance contains a list of topics and questions used by the … Continue Reading
In this two-part series, we recap the confirmation hearing highlights of President Donald Trump’s nominee for chairman of the U.S. Securities and Exchange Commission, Jay Clayton, who testified before the Senate Banking Committee on March 23, 2017. READ PART TWO HERE… Continue Reading
On March 10, 2017, at the annual ABA White Collar Conference in Miami, Kenneth Blanco, Acting Assistant Attorney General for the DOJ’s Criminal Division, announced that the FCPA Pilot Program would stay in place beyond its current April 5, 2017 expiration date so the DOJ could “begin the process of evaluating the utility and the … Continue Reading
Mexico’s new anti-corruption system, which was signed into law by President Enrique Peña Nieto on July 18, 2016, builds on constitutional reforms passed in May 2015 and is designed to increase oversight of public officials to deter corruption at all levels of the Mexican government. The laws establish new responsibilities and stricter penalties applicable to … Continue Reading
Yesterday, the U.S. Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”) announced that JPMorgan Chase & Co. (“JPMorgan”) and its Hong Kong-based subsidiary, JPMorgan Securities (Asia Pacific) Limited (“JPMorgan-APAC”), agreed to pay over $264 million to settle charges that JPMorgan violated the Foreign Corrupt Practices Act (“FCPA”) by providing jobs and internships to … Continue Reading
In a move that follows long-standing complaints from the corporate community and the FCPA defense bar concerning the Government’s vague assurances of “cooperation credit” in FCPA resolutions for self-reporting companies, on April 5, 2016, DOJ officials announced a new one-year FCPA “pilot program” that outlines a concrete set of standards defining what constitutes cooperation and what credit … Continue Reading
The Washington Post reported last week that the DOJ is considering an internal policy that could give some companies a “free pass” if they voluntarily disclose violations of the FCPA, including information regarding culpable employees. The proposed policy—which is under review and has not yet been adopted—strongly recommends that prosecutors decline to bring criminal charges … Continue Reading
In his keynote address at the ACI 32nd International Conference on the Foreign Corrupt Practices Act in Washington, DC on November 17, 2015, SEC Enforcement Director Andrew Ceresney announced to the in-house compliance officials and corporate defense attorneys in attendance that, going forward, any public company that fails to self-report a potential FCPA violation to … Continue Reading
Given the prevalence of corruption and graft issues in various Latin American countries , it may come as a surprise to some that many of Latin America’s most notoriously “corrupt” countries have actually enacted fairly extensive anti-corruption laws in recent years, even as compared to the U.S. Foreign Corrupt Practices Act (“FCPA”). For instance, the … Continue Reading
At the American Conference Institute’s 9th Annual Houston Foreign Corrupt Practices Act Boot Camp, January 27-28, 2015, Deputy Criminal Chief Jason Varnado, from the Major Fraud Section of the United States Attorney’s Office in the Southern District of Texas, offered the audience of compliance and audit professionals insight into what the Department of Justice (DOJ) expects … Continue Reading
Last week, a judge in the U.S. District Court in Camden, New Jersey ruled that prosecutors can use secretly recorded conversations between Joseph Sigelman, the former chief executive officer of PetroTiger, and the company’s former general counsel, Gregory Weisman, in Sigelman’s upcoming trial. Judge Joseph E. Irenas explained that the mere existence of an attorney-client … Continue Reading
While the primary domestic anti-bribery statute, the FCPA, has been on the books for nearly four decades, the UK’s principal anti-bribery law, the UK Bribery Act, is merely an infant, having become effective in July 2011. Recently, however, the UK Bribery Act took a step toward maturity as the UK’s Serious Fraud Office (“SFO”), the … Continue Reading
In its recent declination to review the Third Circuit’s decision in In Re: Grand Jury Subpoena, a case involving the contours of the crime-fraud exception to the attorney-client privilege, the U.S. Supreme Court leaves intact the Third Circuit’s conclusion that by merely informing a client of the applicable law, asking clarification questions, and advising against potentially … Continue Reading
As made clear in the DOJ and SEC’s joint Resource Guide to the Foreign Corrupt Practices Act (FCPA), U.S. prosecutors view foreign nationals as liable under the FCPA, regardless of whether they have taken any action in the United States, in cases where they aided and abetted, conspired or acted as an agent of an issuer … Continue Reading
