The Anti-Corruption Report

The definitive source of actionable intelligence covering anti-corruption laws around the globe

Articles By Topic

By Topic: Facilitation Payments

  • From Vol. 6 No.2 (Feb. 1, 2017)

    Successor Liability in the Spotlight With Mondelēz’s $13M FCPA Settlement After Purchase of Cadbury India 

    Mondelēz International, Inc., has settled anti-corruption allegations with the SEC stemming from subsidiary Cadbury Limited’s expansion of a chocolate plant in India. U.S.-based Mondelēz, which acquired U.K.-based Cadbury in 2010, agreed to pay a civil penalty of $13 million to settle the allegations concerning payments made to a third-party agent retained by Cadbury India. The deal is notable for its illumination of acceptable levels of pre-acquisition due diligence and for the fact that only civil penalties were incurred, with no mention of disgorgement, practitioners told The FCPA Report. For more on anti-corruption in India, see “Experts Discuss the Corruption Climate in India and Give Six Practical Tips to Mitigate Risk” (Mar. 9, 2016); “Regional Risk Spotlight: Jay Holtmeier of WilmerHale Explains How to Navigate Bureaucratic Corruption Risks in India” (Sep. 23, 2015) and “Doing Business in India: Avoiding Corruption Risks and Monitoring Compliance Programs” (Jun. 11, 2014).

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  • From Vol. 6 No.1 (Jan. 18, 2017)

    Regional Risk Spotlight: Myanmar Trips on Legacy of Corruption As It Moves Toward Greater Transparency

    In 2011, Myanmar’s military junta stepped aside after almost half a century in power, and a civilian government began the process of normalizing relations with the West. Since then the country has been rocked by ethnic conflict and civil war, but, by most accounts, the country’s leadership has made steady progress in establishing the legal, financial and civic institutions upon which a more equitable society may be built, including the passage of the Anti-Corruption Law in 2013. Myanmar’s efforts to instill a culture of anti-corruption among officials has largely been successful despite a weak record of enforcement activity, anti-corruption lawyers and political risk consultants based in the region told The FCPA Report’s sister publication Policy and Regulatory Report (PaRR). See “Regional Risk Spotlight: Douglas Mancill of PriceSanond Explains the Thai Corruption Landscape” (Nov. 18, 2015).

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  • From Vol. 5 No.17 (Aug. 31, 2016)

    Regional Risk Spotlight: Livia Zamfiropol of DLA Piper Discusses Recent Trends in Romania’s Anti-Corruption Enforcement

    While the countries that make up the E.U. are often treated as a uniform block, the U.K.’s recent decision to exit from the Union underscores that each European country has its own culture and laws that can lead to unique political outcomes. Thus, it is important for companies operating in Europe to understand each nation’s anti-corruption laws and the related enforcement environment. In this installment of The FCPA Report’s Regional Risk Spotlight, we speak with Livia Zamfiropol, a partner in DLA Piper’s office in Bucharest, about an increase in corruption prosecutions in Romania and what companies need to know to stay ahead of the curve. See “Regional Risk Spotlight: What Companies Need to Know About Internal Investigations in South Africa” (Jul. 27, 2016).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    Customs Corruption Risks:  Should a Company Ever Pay a Facilitation Payment to a Customs Official? (Part Three of Three)

    Moving goods from one country to another – a staple of many businesses – exposes companies to various points of bribery risk as employees try to navigate different customs regimes and expedite shipments.  One particular area of risk is the temptation to give a customs official a small “grease payment” to quickly clear goods through customs.  Under certain circumstances such payments may be permissible – but not always.  This article, the final installment of The FCPA Report’s series on anti-corruption risks related to customs, takes an in-depth look at facilitation payments in the customs process, which have become “a trap for the unwary,” according to Boies, Schiller & Flexner partner Scott Wilson.  The article examines when, if ever, companies should allow facilitation payments and, if so, how companies should structure their facilitation payment policies.  The first article gave an overview of the types of corruption risks companies face when engaging in international trade, and suggested four ways to mitigate them.  The second looked at the role third parties, such as customs brokers and freight forwarders, play in customs corruption risk and discussed how companies can minimize those risks through due diligence, communicating expectations, contract language and monitoring.  See also “Designing a Facilitation Payments Policy to Minimize Liability and Retain Flexibility (Part One of Two),” The FCPA Report, Vol. 1, No. 4 (Jul. 25, 2012); Part Two, Vol. 1, No. 5 (Aug. 8, 2012).

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  • From Vol. 4 No.19 (Sep. 23, 2015)

    Regional Risk Spotlight:  Jay Holtmeier of WilmerHale Explains How to Navigate Bureaucratic Corruption Risks in India

    As the world’s second-most populous country, India presents myriad opportunities for foreign companies to sell and manufacture their products.  As an English-speaking nation with a highly educated populace, it has also become a hub for outsourcing services such as customer relations and technical support.  On the other hand, as a legacy of its colonial past, India is highly bureaucratic and companies doing business there face an intricate web of government regulations and licensing requirements, creating corruption risk.  In this installment of The FCPA Report’s Regional Risk Spotlight series, we talk to Jay Holtmeier, a partner at WilmerHale, about how companies can best navigate corruption risks in India and build strong compliance programs while doing business there.  See also “Regional Risk Spotlight:  Thomas Firestone of Baker & McKenzie Explains How to Navigate Corruption Risks in Russia,” The FCPA Report, Vol. 4, No. 16 (Aug. 5, 2015).

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  • From Vol. 3 No.18 (Sep. 10, 2014)

    Analyzing and Addressing Corruption Risks in Southeast Asia

    Companies operating in Southeast Asia stand to profit significantly from the unique business opportunities in the region but also face extensive corruption risks – risks rooted in that region’s politics, traditions, laws and more.  At a recent webinar hosted by Strafford Publications, anti-corruption experts discussed the intricacies of operating in ASEAN countries.  The panelists included: Edward Fishman, a partner at K&L Gates; Neil McInnes and Barry Vitou, partners at Pinsent Masons and Matthew Reinhard, a member at Miller & Chevalier.  This article outlines region-wide and country-specific corruption risks as well as some of the best practices the panelists discussed for addressing those risks.

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  • From Vol. 3 No.12 (Jun. 11, 2014)

    FCPA Compliance Strategies for Hedge Funds and Private Equity Firms

    Given today's investment environment, with an unabated government focus on the private fund industry and significant opportunities developing in emerging markets, private equity fund managers are hard-pressed to ignore corruption risks in their businesses.  Molo Lamken, together with The FCPA Report and The Hedge Fund Law Report, recently hosted a panel that addressed hot topics in FCPA enforcement and compliance for this industry.  The panelists, including outside and in-house counsel, discussed, among other things: the current FCPA enforcement climate for private equity and financial services firms; strategies for mitigating the risk associated with third parties and service providers in high-risk countries; handling facilitation payments; self-reporting violations; and the importance of continuously monitoring compliance programs.  See “Corruption Considerations for Private Fund Managers: An Interview with Molo Lamken Partner Justin Shur,” The FCPA Report, Vol. 3, No. 11 (May 28, 2014).

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  • From Vol. 3 No.11 (May 28, 2014)

    Corruption Considerations for Private Fund Managers: An Interview with Molo Lamken Partner Justin Shur

    Private fund managers are looking with increasing receptivity at emerging markets, and, in some cases, frontier markets where corruption risk is significant.  This has not gone unnoticed by the FCPA units in the SEC and DOJ, which have been focusing on bribery in the financial services industry.  See “Why the Direct Access Partners Case Matters for Financial Sector Anti-Corruption Compliance,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).  The FCPA Report recently interviewed Justin V. Shur, a former federal prosecutor and now a partner at Molo Lamken LLP, about the enforcement climate, the risks the industry faces and strategies for compliance.  The interview covered, among other things: the relationship between investment control and FCPA risk; contract provisions to limit the FCPA risk raised by third parties; issues presented by deal finders and sovereign wealth funds; hiring risks and best practices; facilitation payments; and successor liability.  Shur will expand on these ideas at a complimentary event (invitation here) at 5 p.m. on June 3 at the CORE: Club in Manhattan.  The event is sponsored by Molo Lamken, The FCPA Report and our affiliated publication, The Hedge Fund Law Report.  In addition to Shur, the event will feature his partner Andrew DeVooght, panelists from Indus Capital, Seward & Kissel, Global Environment Fund and the SEC.  Please RSVP to rsvp@fcpareport.com.  A cocktail reception will follow.

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  • From Vol. 2 No.11 (May 29, 2013)

    Top Government and Private FCPA Practitioners Discuss Global Enforcement, Self-Reporting, Facilitation Payments, M&A Due Diligence, Jurisdiction and NPAs

    It’s been a busy year in FCPA compliance and enforcement – including leadership changes at the DOJ; the SEC’s first-ever NPA; an apparent decline in enforcement actions followed by a recent upswing; a growing, active global anti-corruption community; a new Canadian anti-corruption regime; and increased emphasis on merger and acquisition due diligence in the private sector, among other things.  At a recent panel hosted by the Practising Law Institute during its “Foreign Corrupt Practices Act and International Anti-Corruption Law Developments 2013” program, distinguished FCPA lawyers in both the private and public spheres distilled the most important trends in the field – and sometimes disagreed about what they mean for both outside and in-house counsel who deal with anti-corruption issues.  Mark Mendelsohn, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP moderated the May 2, 2013 panel, with help from Richard Grime, a partner at O’Melveny & Myers LLP.  The panel was comprised of Roger Witten of WilmerHale and Danforth Newcomb of Shearman & Sterling LLP on the private side, and Jason Jones, Assistant Chief of the FCPA Unit, Fraud Section, Criminal Division at the DOJ, and Charles Cain, Deputy Chief, FCPA Unit, Division of Enforcement at the SEC, on the public side.

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    FCPA Training That Works: An Interview with Joseph Spinelli, Global Leader of Navigant’s Anti-Bribery & Corruption-FCPA Segment

    Designing and implementing a workable and customized FCPA training program is a foundational challenge in anti-corruption compliance for all companies doing business internationally.  As the FCPA Resource Guide says, “Compliance policies cannot work unless effectively communicated throughout a company.”  As a practical matter, training is the primary channel through which companies communicate their culture of FCPA compliance and specific compliance strategies.  Done right, training is one of the most effective bulwarks against FCPA violations.  But how can companies do training right?  To answer this question, The FCPA Report is undertaking a series of interviews with experts that approach the same topic (FCPA training) from different disciplines.  This article – the first installment in that series – includes our interview with Joseph Spinelli, a Managing Director in Navigant’s Global Investigations and Compliance practice and the global leader of Navigant’s Anti-Bribery & Corruption-FCPA segment.  Spinelli has more than 30 years of forensic experience, founded the forensic practice at a Big Four accounting firm and has served in various monitorships.  See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part Three of Three),” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).  Spinelli shared his views not only on how to make a training program effective in preventing bribery, but also on how to ensure the company receives maximum credit when the government is evaluating its training program.  He addressed, among other things: training third parties; which employees should be trained; specialized training for different industries; the relative merits of different technologies for training employees; training challenges, including facilitation payments; and effective training methods.

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    Structuring FCPA Books and Records Controls to Withstand SEC Scrutiny Without Impairing Sales

    Although the FCPA is commonly known as an “anti-bribery” law, it is frequently difficult for the SEC and DOJ to prove that a suspect payment was made with the requisite “corrupt” intent to establish a violation of FCPA Section 78dd-a.  However, investigations of suspect payments often reveal violations of FCPA Section 78m, which requires a company to maintain appropriate internal accounting controls and accurate books and records (the Accounting Provisions).  Even if a payment to a government official does not constitute an impermissible bribe, if that payment is recorded as a sales commission, then the company can still be held liable for an FCPA Accounting Provisions violation.  A recent webinar shed light on SEC enforcement and investigative priorities with regard to the Accounting Provisions and on how companies can approach the development of suitable accounting controls.  This article catalogues the noteworthy insights from the webinar.

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    The Essentials of the New Canadian Anti-Corruption Requirements

    The anti-corruption regime in Canada is likely about to get a lot stronger, significantly impacting the enforcement risks for Canadian companies operating at home and abroad.  In February of this year, a bill was introduced in the Canadian Parliament to significantly amend Canada’s Corruption of Foreign Public Officials Act (CFPOA).  The decision to strengthen the CFPOA comes on the heels of significant criticism leveled against the Canadian government over the past several years for its lack of anti-corruption enforcement.  The amendments are expected to pass the legislature in the near future.  In a guest article, Mara V.J. Senn and Mauricio Almar, partner and associate, respectively, at Arnold & Porter LLP, discuss the proposed amendments, how they will impact Canadian companies and others subject to the CFPOA, and draw comparisons and contrasts with the FCPA.

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  • From Vol. 2 No.5 (Mar. 6, 2013)

    Facilitation Payments, Foreign Officials, Bona Fide Expenditures and More: Actionable Insight from the Authors of “Defending Clients in FCPA Investigations”

    Mark P. Goodman and Bruce E. Yannett, partners at Debevoise & Plimpton LLP, and Daniel J. Fetterman, a partner at Kasowitz, Benson, Torres & Friedman LLP, are the FCPA experts behind “Defending Clients in Foreign Corrupt Practices Investigations,” a chapter in the 2012 treatise “Defending Corporations and Individuals in Government Investigations.”  Their chapter addresses the hot button issues companies are facing today as the SEC and DOJ continue to increase the pressure on global companies to implement and enforce best of breed FCPA compliance programs.  Goodman and Fetterman recently shared their insight on some of these pressing issues with The FCPA Report.  In our interview, they discussed how far the FCPA’s jurisdiction reaches in light of recent case law and the FCPA Guidance, including the jurisdictional implications for aiders, abettors and conspirators; details regarding rewards under the new Dodd-Frank whistleblower provisions; who is a foreign official and whether it matters; how companies should handle facilitation payments; advice on reasonable business expenses after the Guidance; the concept of virtual strict liability in accounting violations of the FCPA; how judicial review will impact settlements; the collateral effects of an FCPA settlement; and when to self-report an FCPA violation.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Top Practitioners Analyze the DOJ & SEC FCPA Guidance (Part Two of Two)

    On November 14, 2012, the SEC and DOJ jointly issued long-awaited guidance on the FCPA (Guide or Guidance), spurred in part by the Organisation for Economic Cooperation and Development’s recommendation, and business pressures for more clarity about the FCPA and the government’s enforcement of it.  This article continues our extensive coverage of the Guidance and the practical implications of it, offering concrete suggestions to anti-bribery professionals on avoiding, handling and settling enforcement actions, conducting internal investigations and executing mergers and acquisitions.  This article – the second in a two-part series – uses input from leading FCPA experts to extract practical lessons from the Guide, including what it says about compliance programs and internal controls; whether the Guide sheds any light on what constitutes a facilitation payment and who constitutes a foreign official, and whether those distinctions are important; the Guide’s insight on third-party due diligence, successor liability and statute of limitations issues; and whether the Guide affects the self-reporting calculus.  The first article in this series addressed the backstory of the Guide and why it was issued; how companies and their counsel can use the Guide and the hypotheticals included in it; advice that can be distilled from the Guide on gifts, travel and entertainment; deficiencies in the Guide and which areas of the law remain unclear; and the highlights and lowlights of the Guide’s declination section.  See “Top Practitioners Analyze the DOJ & SEC FCPA Guidance (Part One of Two),” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 1 No.10 (Oct. 17, 2012)

    Britain’s Serious Fraud Office Updates Guidance on the Bribery Act, Reinforcing Its Role as a Crime Fighting Agency

    While much of the U.S. anti-corruption community was focused on the expected arrival of FCPA guidance from the DOJ and the SEC, on October 9, 2012, the Serious Fraud Office (SFO), the U.K.’s agency with primary responsibility for enforcing the Bribery Act, beat them to the punch, releasing new guidelines relating to certain aspects of the Act in a tone that emphasizes the importance the SFO is placing on targeting bribery.  This article details the substance of the guidance and its implications for operating companies.

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Why the Current Regime Is Effective at “Busting Bribery": An Interview with Professor Dan Danielsen, Co-Author of the Open Society Foundations’ Report on Corruption

    The FCPA Report recently had a wide-ranging conversation with Dan Danielsen, a Professor at Northeastern University School of Law and former general counsel of Europe Online Networks, S.A. and partner at Foley Hoag LLP.  Professor Danielsen, along with David Kennedy, Professor at Harvard Law School and Director of the Institute for Global Law and Policy, authored the report “Busting Bribery: Sustaining the Momentum of the Foreign Corrupt Practices Act” (Report).  The Report was commissioned by the Open Society Foundations as a response to the Chamber of Commerce’s report, which argued for amendments to the FCPA.  Danielsen and Kennedy had complete academic freedom as to the content and conclusions drawn in the Report.  In our interview, Professor Danielsen discussed, among other things: why the costs of bribery, given the evolving global scheme, outweigh the benefits; the effectiveness of the DOJ Opinion Procedure; why a good faith compliance defense is inconsistent with the scienter requirement in the statute; how agreements with the government, such as DPAs and NPAs, are creating a regulatory jurisprudence similar to no-action letters in the securities context; companies’ reluctance to go to court and obtain judicial scrutiny; the reasonableness of the current “knowing” standard in the statute; and the need for flexibility in the definition of “foreign official.”

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    Grant Thornton Webinar Highlights FCPA and U.K. Bribery Act Compliance Trends (Part Two of Two)

    On August 21, 2012, Grant Thornton hosted a webinar entitled “Evolving Anti-Corruption Legislation: Is your business up-to-date?”  The program provided a helpful overview of trends in FCPA enforcement and enforcement of the U.K.’s Bribery Act of 2010 (Bribery Act), including the potentially broad reach of the Bribery Act, and guidance on best practices for anti-corruption compliance.  The FCPA Report is covering the webinar in a two-part article series.  This article, the second part, focuses on compliance trends.  The first part focused on enforcement trends.  See “Grant Thornton Webinar Highlights FCPA and U.K. Bribery Act Enforcement Trends (Part One of Two),” The FCPA Report, Vol. 1, No. 7 (Sep. 5, 2012).

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  • From Vol. 1 No.6 (Aug. 22, 2012)

    Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law and author of the popular blog the FCPA Professor.  He has testified before Congress and written extensively about FCPA issues.  Professor Koehler previously was Assistant Professor of Business Law in the College of Business at Butler University, and before that was an attorney at Foley & Lardner LLP, where he conducted FCPA investigations on behalf of companies, negotiated resolutions to FCPA enforcement actions with government enforcement agencies and advised clients on FCPA compliance and risk assessment.  In the first part of our interview, which is included in this issue of The FCPA Report, Professor Koehler spoke about the long tail on FCPA violations and the “gray cloud” that hangs over companies once they self-report, and he questioned whether companies should self-report at all.  See also “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  He also shared compliance advice in light of recent enforcement trends relating to facilitation payments, the “obtain or retain business” element of the statute and the definition of foreign officials.  In addition, Professor Koehler discussed compliance lessons arising out of the unique way the FCPA is enforced and the relative lack of judicial scrutiny of the statute.

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  • From Vol. 1 No.5 (Aug. 8, 2012)

    Designing a Facilitation Payments Policy to Minimize Liability and Retain Flexibility (Part Two of Two)

    Facilitation payments – payments to foreign officials that facilitate or expedite routine tasks – remain “legal bribes” under the FCPA.  Facilitation payments can be advantageous in many circumstances, and sometimes even essential to the safety of a company’s workers or the viability of its ongoing operations.  But such payments are prohibited under other foreign bribery laws, and they are nearly universally prohibited as payments to domestic officials under local laws.  Companies have struggled to strike the right balance between business flexibility and legal compliance.  Many companies have banned facilitation payments outright, but doing so can unduly limit a company’s ability to act quickly and decisively, which can be crippling in competitive markets.  On the other hand, too lax an approach to facilitation payments invites enforcement actions and reputational harm.  To assist our subscribers in designing policies, procedures and practices that balance compliance considerations with the need to retain business agility, we are publishing this second article in a two-part series.  This article addresses: advisable “safety valves” or exceptions to a general ban on facilitation payments; drafting and implementing a facilitation payments policy to accommodate those exceptions and avoid liability; concerns relating to the all-important issue of properly recording facilitation payments; and seven specific steps that companies should take in designing training programs relating to facilitation payments.  The first article in this series discussed: the definition of a facilitation payment, including examples; the differing treatment of such payments under the FCPA and other laws, notably the U.K. Bribery Act; the tension that has resulted from the conflict of laws; cases in which the argument has been made that the payments in question were facilitation payments, including the Wal-Mart investigation; and the trend among companies toward banning facilitation payments outright.  See “Designing a Facilitation Payments Policy to Minimize Liability and Retain Flexibility (Part One of Two),” The FCPA Report, Vol. 1, No. 4 (Jul. 25, 2012).

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  • From Vol. 1 No.4 (Jul. 25, 2012)

    Designing a Facilitation Payments Policy to Minimize Liability and Retain Flexibility (Part One of Two)

    The FCPA prohibits bribes to foreign officials, but the statute carves out an exception for bribes that facilitate or expedite a foreign official’s routine tasks.  The U.S. stands nearly alone on the global stage with this exception, yet no changes to the law are in view.  In 2010, Chuck Duross, Assistant Chief in the DOJ Criminal Division’s Fraud Section, said, “We’re not saying you should make facilitating payments, it’s an exception, we’re not encouraging it.”  The tide, strengthened after passage of the U.K. Bribery Act, has been turning against facilitation payments, and more and more companies have begun to rethink allowing any kind of “grease” payment at all.  Compounding the trend are the high-profile troubles of Wal-Mart, in which one prominent issue is whether certain payments constitute bribes or facilitation payments under the FCPA.  The reasons to ban facilitation payments outright are plenty, a significant one being the conflict of laws: Not only do most countries ban these kinds of payments to foreign officials, but most local laws ban these kinds of payments to domestic officials, subjecting the company that makes such a payment to potential prosecution abroad even if the payment is legal under U.S. law.  Further complicating the picture is the need to properly record the facilitation payments or risk an FCPA books and records violation.  Moreover, there is the challenge of employees on the ground determining whether an official receiving a grease payment is using “discretion” or not – that is, determining whether the same dollars are a bribe or a facilitation payment.  Prohibiting facilitation payments completely, however, may not be feasible.  Sometimes the safety of a company’s workers depends on such a payment; sometimes foregoing the payment will shut down the entire business; and sometimes the payment truly is a small payment to expedite a routine government service.  Designing and implementing a policy that protects a company from liability yet is flexible enough to accommodate extenuating circumstances is a difficult task.  This two-part article series takes on that task and sheds light on the nuances of this issue, providing insight from leading practitioners on how to formulate a workable compliance policy on facilitation payments.  Part one of this series discusses: the definition of a facilitation payment, including examples; the differing treatment of such payments under the FCPA and other laws, notably the U.K. Bribery Act; the tension that has resulted from the conflict of laws; cases in which the argument has been made that the payments in question were facilitation payments, including the Wal-Mart investigation; and the trend among companies towards banning facilitation payments outright.  Part two of the series will address: advisable “safety valves” or exceptions to a general ban on facilitation payments; drafting and implementing a facilitation payment policy to accommodate those exceptions and avoid liability; concerns relating to the all-important issue of properly recording facilitation payments; and guidance on training employees about facilitation payments.

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  • From Vol. 1 No.2 (Jun. 20, 2012)

    Anti-Corruption Audits, Risk Assessments, Transaction Testing and the Dangers of Petty Cash: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice

    This article includes the second part of The FCPA Report’s in-depth interview with Brian Loughman and Richard Sibery, leaders of the Fraud Investigation and Dispute Services Practice at Ernst and Young LLP (E&Y).  Our interview focused on the critical decision points for global companies confronting anti-bribery issues when operating abroad.  We covered a lot of ground and, in the process, conveyed much of the key substance of the recent book by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley 2012).  In light of its length and depth, we have published our interview as a two-part series.  This second part covers topics including: the dangers of petty cash; the nuts and bolts of transaction testing; FCPA-specific due diligence considerations for mergers and acquisitions; whether a company should combine an anti-corruption audit with a general audit; and best interviewing and communication techniques.  The first part of the interview dealt with the challenges of designing an effective FCPA training program, techniques of effective third party due diligence and risk assessments and other actionable topics.  See “Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012).

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  • From Vol. 1 No.1 (Jun. 6, 2012)

    Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice

    Brian Loughman is the Americas Leader of the Fraud Investigation & Dispute Services Practice at Ernst & Young LLP (E&Y), and Richard Sibery leads E&Y’s Fraud & Investigations Group within the Fraud Investigation & Dispute Services Practice.  In those roles, Loughman and Sibery have amassed deep, detailed and current experience with global anti-bribery investigations and remediation – the sort of practical know-how that only comes with extensive, on-the-ground experience.  The FCPA Report recently had the privilege of conducting a wide-ranging interview with Loughman and Sibery.  The general intent of the interview was to identify the most pressing anti-bribery issues facing global companies and specific strategies for addressing those issues.  In this sense, our interview sought to paraphrase some of the more important points made in the book recently written by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley, 2012).  In particular, our interview covered: the challenges of designing an effective FCPA training program; the utility of certification programs; techniques of effective third party due diligence and risk assessments; issues surrounding customs payments, including the difficult issue of facilitation payments; the dangers of petty cash; the nuts and bolts of transaction testing; why M&A transactions pose unique due diligence challenges; whether an anti-corruption audit and a general audit plausibly may be combined; and best practices for interviewing and communications.  We are publishing the full transcript of our interview with Loughman and Sibery in two parts: the first part is included in this issue of The FCPA Report and the second part will be included in the next issue.

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