Jul. 21, 2021

A Different Kind of FCPA Settlement: What Corporate Defendants and “Victims” Can Learn From the Nokia-Ericsson Civil Resolution

Ericsson’s $97‑million direct settlement with competitor Nokia, arising out of its $1‑billion FCPA settlement in December 2019 with the DOJ and the SEC, is an example of one of the unintended consequences of a settlement for companies seeking finality when resolving an FCPA case with the government. In this guest article, Fry Wernick, Palmina Fava, Michael Ward, Christopher James and John Greil, attorneys at Vinson & Elkins, argue that general counsels and compliance officers should include this risk among the “offensive” options to consider upon settling FCPA allegations. They examine the relative rarity of competitor-victim claims that follow from an FCPA resolution, the possibility of an upward trend on the heels of recent support for victim claims and restitution from the DOJ and federal courts, and strategies companies can employ to minimize these collateral risks. See “Lessons from Telecom Giant Ericsson’s Billion-Dollar Record-Setting Deal” (Jan. 8, 2020).

M&A Lessons From the Amec Foster Wheeler Resolutions

The John Wood Group has reached a $177 million settlement to resolve widespread bribery and corruption allegations related to the Amec Foster Wheeler companies, which it acquired in 2017. The settlement was global, including deals with the DOJ and SEC in the U.S., the SFO in the U.K. and several Brazilian authorities. A review of the allegations and their underlying issues highlights the need for effective pre- and post-acquisition due diligence, effective legal and board-level responses to corruption red flags, and the ever-present risks associated with the use of third-party business intermediaries. See our three-part series on managing M&A anti-corruption risk: “Pre-Deal Prep” (Oct. 3, 2018); “Pre-Closing Risk Assessments and Due Diligence” (Oct. 17, 2018); and “Deal Terms and Integration” (Oct. 31, 2018).

A Deep Dive Into the NDAA: What Statute of Limitations Applies to the FCPA’s Anti-Bribery Provisions?

Although Section 6501 of the NDAA may have clarified and enhanced the SEC’s disgorgement authority in certain respects, the scope of its application, particularly in the FCPA context, remains to be determined. In the first part of a three-part guest article series, Lucinda Low, Christopher Conte and Daniel Podair of Steptoe dissect whether the anti-bribery provision of the FCPA applicable to issuers is a scienter-based statute subject to the NDAA’s 10-year statute of limitations. The second article will address the application of the NDAA’s expanded limitation period to the FCPA’s accounting provisions, and the final segment will address how the NDAA’s provisions affect disgorgement. See “What to Expect From the Biden Administration’s New Anti-Corruption Tools” (Mar. 3, 2021).

Broadening Corporate Criminal Liability in England and Wales

Under the U.K. Bribery Act and recent case law, it is very difficult for corporations to be held liable for the actions of their executives, employees or third parties in England and Wales, and a new commission is examining whether corporate criminal liability should be expanded. The Anti-Corruption Report recently spoke with Lloydette Bai-Marrow, a former SFO prosecutor and the founding partner of ParaMetric Global Consulting, a white collar crime investigations consultancy, about her views on the growing momentum to reform criminal corporate liability laws in England and Wales and what she sees as a complex, but necessary discussion that may result in seismic changes to the legal landscape there. See “As the U.K. Bribery Act Turns Seven, Experts Take Its Pulse” (Jul. 25, 2018).

AI Compliance Playbook: Seven Questions to Ask Before Regulators or Reporters Do

Regulators, news media and legislators are asking increasingly detailed questions about organizations’ artificial intelligence and machine learning (AI/ML) systems. Five financial regulatory agencies recently asked companies to answer a list of questions about their AI/ML use and the European Commission asked for comments on 80 pages of proposed AI regulations. This article, part two in a three-part series, provides questions that companies can ask themselves to guide oversight of their AI use before outsiders demand answers. With each question, we offer insight on steps to take and developments to watch. Part one covered compliance essentials for AI/ML tools, while part three will cover how AI audits work and describe the Federal Reserve System’s recommended “three lines of defense” framework to manage algorithm risks. See “How to Achieve Trustworthy AI Using the European Commission’s Final Assessment List” (Aug. 5, 2020).

Former Federal Prosecutor Joins Greenberg Traurig as Co-Chair of Trial Practice

William Michael, Jr., will divide his time between the firm’s Minneapolis and Miami offices. He joins from Mayer Brown in Chicago and was previously an Assistant U.S. Attorney and branch office head in the Southern District of Florida. For more from Greenberg Traurig, see “Revisiting Compliance Programs in Light of the DOJ’s Updated ECCP” (Sep. 30, 2020).

Former SDNY Corruption Unit Chief Joins McDermott

Edward (Ted) Diskant has joined the firm’s New York office as a partner in its litigation practice. He was the former head of the Public Corruption Unit in the U.S. Attorney’s Office for the Southern District of New York.

Takahiro Nonaka Joins Morrison & Foerster in Tokyo

A partner in the litigation department, he has experience in commercial litigation, internal investigations, and global compliance and regulatory matters, including anti-corruption, antitrust, data privacy, government and regulatory matters. For more from Morrison & Foerster, see our three-part series introducing FARA: “Definitions and Exemptions” (Mar. 3, 2021); “The New Risk Environment” (Mar. 17, 2021); and “Enforcement and Compliance” (Apr. 14, 2021).