The Anti-Corruption Report

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

Articles By Topic

By Topic: Foreign Officials

  • From Vol. 6 No.17 (Sep. 6, 2017)

    Policing the Banks: Analyzing India’s New Anti-Corruption Regulations for Private Banks

    After the Indian Supreme Court’s recent ruling that employees of privately owned banks qualify as “public servants” under India’s anti-corruption statute, a drastic regulatory shift for private Indian banks is expected. In a guest article, Pallav Shukla, an attorney at Trilegal, explains the Court’s ruling, discusses its general impact on policy, details the specific regulatory impact on the banking business in India and makes recommendations for how banks operating in India can protect themselves. See “Tailoring Compliance Efforts to Address Challenges in India” (Feb. 1, 2017).

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  • From Vol. 6 No.10 (May 24, 2017)

    A Rare Jury Conviction for a Bribe-Taker Proves the Worth of FBI Foreign Corruption Units 

    A frequent complaint from companies is that while they are held to account for corruption issues, some of them minor or remote, the bribe-takers are rarely punished. A recent conviction of a former foreign official shows that the DOJ has heard these concerns and is putting resources – including the three international corruption squads at the FBI – to work targeting corrupt foreign officials. Mahmoud Thiam, a former Minister of Mines and Geology of the Republic of Guinea, was recently found guilty of one count of transacting in criminally derived property and one count of money-laundering. We analyze the case and its implications for future enforcement. See “DOJ Seeks to Reassure on FCPA Enforcement” (Apr. 26, 2017).

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  • From Vol. 6 No.6 (Mar. 29, 2017)

    Optimizing Third-Party Due Diligence in the Wake of Unaoil

    Oil-and-gas intermediary Unaoil’s bribery scandal shows that even conducting extensive due diligence on third parties does not eliminate third-party risk, as evidenced by the several major corporations ensnared in the scheme despite their own substantial due diligence. A recent panel discussion hosted by Strafford examined the scandal and offered practical suggestions for making the most of third-party due diligence in its wake. The seminar was moderated by Jay Holtmeier, a partner at WilmerHale, and featured Palmina M. Fava, a partner at Paul Hastings, Pedro Medrano, senior counsel at Time Warner and Richard Sibery, a partner at EY. This article summarizes their insights. See “A New Era in FCPA Disclosure” (Feb. 1, 2017).

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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. 5 No.16 (Aug. 10, 2016)

    Managing Corruption Risk When Hiring and Training Foreign Officials and Their Relatives Overseas: Practical Compliance Guidance (Part Two of Two)

    More than a decade after the overseas anti-corruption enforcement boom began, it is clear that the U.S. government is looking to prosecute corruption that takes non-traditional forms. Providing internships, education, gifts, hospitality and entertainment to, or at the request of, government officials can all lead to anti-corruption troubles. For companies operating in the extractive industry, subject to local content laws that require them to provide such opportunities to the local workforce, compliance is key. In a two-part guest article series, Andrew Costa, the general counsel and assistant secretary of the Atlantic Methanol Companies, along with Jeremy Levin, a partner at Baker Botts, and his associate Louie Layrisson, discuss how to overcome overseas hiring and training challenges. The first article distilled insights from U.S. settlements regarding the government’s expectations for hiring practices and training programs. This second article provides guidance on mitigating risks associated with training foreign officials and hiring their relatives. See “Hiring Practices and FCPA Compliance in the Wake of the BNY Settlement (Part One of Two)” (Jan. 13, 2016); Part Two (Jan. 27, 2016).

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  • From Vol. 5 No.16 (Aug. 10, 2016)

    Swiss Court Acquits Four in Gazprom Case but New Law May Have Led to a Different Outcome

    After about seven years of investigation into the Gazprom corruption case, the Swiss Federal Criminal Court recently acquitted four individuals of corruption charges related to the construction of a gas pipeline because it determined that the Gazprom executives involved were not foreign officials. In a guest article, Shelby R. du Pasquier and Miguel Oural, partners at Swiss firm Lenz & Staehelin, discuss the implications of the acquittals. The heart of the case, they explain, lies in a series of payments totaling $7 million, made by Siemens Industrial Turbomachinery, a company acquired by Siemens in 2003, to senior executives of Gazprom. SIT entered into a settlement with Swiss authorities in 2013, a questionable decision in light of these recent acquittals. Meanwhile, new Swiss legislation criminalizing certain instances of commercial bribery could lead to drastically different outcomes for companies and defendants in similar situations going forward. See “Siemens’ Debarment Highlights the Crux of the Brazilian Business Challenge: Corruption Is Clear, But Anti-Corruption Law Is Ambiguous” (Mar. 19, 2014).

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  • From Vol. 5 No.6 (Mar. 23, 2016)

    U.S. District Court Addresses Definition of “Public International Organization”

    Adding to a scant body of FCPA case law, the U.S. District Court for the Eastern District of Pennsylvania sheds light on the term “public international organization" and consequently the definition of foreign official. The defendant was charged with violating the FCPA, the Travel Act and money laundering laws by funneling bribes to an official of the European Bank for Reconstruction and Development by making payments to the official’s sister. The Court upheld every count of the fourteen-count indictment in its pre-trial ruling. We summarize the facts of the case and the Court’s key findings. See also “What the Eleventh Circuit’s ‘Instrumentality’ Decision Means for FCPA Practitioners” (May 28, 2014).

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  • From Vol. 5 No.3 (Feb. 10, 2016)

    CEO of LAN Airlines Settles FCPA Charges With SEC Over Union Dispute

    In a rare individual FCPA settlement with a sitting CEO, the SEC has resolved books and records allegations against Ignacio Cueto Plaza for $75,000. Cueto, the head of LAN Airlines, neither admitted nor denied the allegations in the SEC’s order regarding the funneling of $1.15 million to an Argentinian consultant in 2006 to pay off union leaders during a labor dispute. We dissect the settlement, which includes a surprising level of detail about training and may be a precursor to future actions related to LAN’s compliance program breakdown. See also “SEC Sanctions Two FLIR Systems Employees for Bribing Saudi Officials” (Nov. 19, 2014).

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  • From Vol. 5 No.2 (Jan. 27, 2016)

    Regional Risk Spotlight: Samuel Nam of Kim & Chang Discusses a South Korean Anti-Corruption Landscape in Flux

    By all measures, South Korea is one of the world’s most advanced economies. With a GDP of more than $1 trillion and Asia’s highest median income and average wage, it is one of the wealthiest countries in the world. That economic strength, combined with a free trade agreement that came into effect in 2012 and incredible expertise in technological research and development, make South Korean companies attractive partners for foreign companies. However, in recent years South Korea has been rocked by a number of corruption scandals that have led to significant shifts in its anti-bribery and anti-corruption landscape. In this installment of the Regional Risk Spotlight, The FCPA Report spoke with Samuel Nam, a senior foreign attorney at Kim & Chang, about aspects of Korea’s culture that can create corruption risk, recent changes in South Korea’s anti-corruption laws and its broad definition of who is a foreign official. See previously “Regional Risk Spotlight: Michael Farhang of Gibson Dunn Discusses Colombia’s Troubled Corruption History and Recent Reforms” (Dec. 16, 2015).

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  • From Vol. 4 No.20 (Oct. 7, 2015)

    “No Money, No Prescription” Attitude in China Leads Bristol-Myers Squibb to $14 Million SEC Penalty

    The SEC has made no secret that it is focused on bribes made by pharmaceutical companies to Chinese health care practitioners, whom it considers foreign officials under the FCPA.  Previous settlements with pharma companies operating in China - such as Eli Lilly, Biomet, Pfizer and Mead Johnson – have focused on the provision of gifts, travel, entertainment or simply cash to Chinese health care practitioners in exchange for prescribing products or getting on government formularies. On October 5, 2015, the SEC announced that it resolved similar charges with pharma giant Bristol-Myers Squibb (BMS) for over $14 million.  The SEC says former BMS employees called their bribes an “open secret” and the only way to meet their sales targets.  We analyze the settlement, a U-turn from the initial investigation into BMS’ activities in Germany, and some of the mistakes BMS made.  See “Ceresney, Focusing on Pharma, Discusses SEC Enforcement Priorities and Compliance Expectations,” The FCPA Report, Vol. 4, No. 6 (Mar. 18, 2015).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    Mitigating Corruption Risk in the Middle East (Part Two of Two)

    Business is booming in the Middle East, with many foreign investors seeking to take advantage of these rapidly expanding markets.  Doing so, while avoiding entanglement with anti-corruption regulators, requires careful risk assessment and planning.  The first article in this two-part series discussed the high incidence of corruption throughout the region, highlighting which countries and industries are the riskiest, and the legal and cultural diversity that can complicate a company’s assessment of corruption risk.  This, the second article of our two-part series, looks at three specific attributes of doing business in the Middle East that pose their own unique risks:  (1) the dominance over many economic sectors by state-owned entities and royal families; (2) the prevalence of third parties in business transactions in the region; and (3) the culture of gift-giving in Middle Eastern countries.  We draw from the knowledge of a panel of experts, organized by Strafford Publications and including Tom Best, a partner at Steptoe & Johnson in Washington, D.C.; Marc Alain Bohn, counsel at Miller & Chevalier in D.C.; John Vincent Lonsberg, a partner with Baker Botts based in Dubai, U.A.E.; and Daniel P. Chung, of counsel with Gibson Dunn in D.C.

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  • From Vol. 4 No.14 (Jul. 8, 2015)

    Regional Risk Spotlight: William McGovern of Kobre & Kim Advises on How to Handle Corruption Risk When Doing Business in China

    China has long been plagued with high corruption risk.  However, the recent uptick in China’s own anti-corruption enforcement – evidenced recently by the fine the Chinese government levied on GSK – is changing the corruption landscape there, as is the steady focus on China by U.S. regulators.  In this installment of The FCPA Report’s Regional Risk Spotlight series, we talk to William McGovern, a partner in Kobre & Kim’s Hong Kong office, about the most pressing corruption issues in China and how companies doing business there can handle them.  See also “Understanding and Tackling China’s Corruption Challenges,” The FCPA Report, Vol. 3, No. 5 (Mar. 5, 2014).

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  • From Vol. 4 No.11 (May 27, 2015)

    Former Prosecutor Daniel Fetterman Speaks Out About Princelings Investigations

    The government continues to scrutinize hiring practices at banks, looking for evidence that banks are hiring the relatives of foreign officials in exchange for business advantages.  Banks are pushing back against these “princeling” investigations, reportedly lobbying the government and accusing the regulators of overreaching.   The FCPA Report spoke with Daniel Fetterman, a partner at Kasowitz, Benson, Torres & Friedman, about when the hiring of princelings crosses the line; best practices for hiring; and his views on the government’s investigation and its effect on other industries.  See “Friendly Relations? When Nepotism May Violate the FCPA,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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  • From Vol. 4 No.10 (May 13, 2015)

    Deciphering the Chinese Anti-Corruption Landscape

    Corruption risk has loomed large for companies operating in China for a long time.  However, recent events may be changing the landscape there – both the aggressive FCPA enforcement by U.S. regulators and the well-publicized battle against corruption by the Chinese government may be having an impact.  A recent program sponsored by Clear Law Institute surveyed the current FCPA enforcement climate as it relates to China, discussed China’s internal anti-corruption efforts, and offered strategies for anti-corruption compliance in China.  The program featured Michael Diamant, a partner at Gibson Dunn.  See also “A Guide to Anti-Bribery Issue Spotting in China: Enforcement Trends, Third-Party Risks, Gift Giving, Travel Expenses, Foreign Officials and Due Diligence,” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013); and “Gibson Dunn Attorneys Take the Pulse of Anti-Corruption Risks in Emerging Markets,” The FCPA Report, Vol. 3, No. 3 (Feb. 5, 2014).

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  • From Vol. 4 No.7 (Apr. 1, 2015)

    From Princelings to SWFs: All-Star Panel Dissects Corruption Issues Affecting Wall Street

    For financial institutions and the private funds industry, corruption risks lurking in common activities are coming to the forefront.  At the New York City Bar, a distinguished panel of former prosecutors and industry experts offered insights into those evolving risks (including hiring practices and sovereign wealth funds), the enforcement landscape and how companies can strengthen their compliance programs in response.  The panel was moderated by John D. Buretta, a partner at Cravath, Swaine & Moore and former Assistant U.S. Attorney and Principal Deputy Assistant Attorney General at the DOJ.  The other speakers were Sarah Coyne, counsel at Debevoise & Plimpton and a former Assistant U.S. Attorney in the Eastern District of New York and Chief of the Business and Securities Fraud Section; Kelly B. Kramer, a partner at Mayer Brown; Claudius O. Sokenu, a partner at Shearman & Sterling and former SEC Senior Counsel; and Linda Chatman Thomsen, a partner at Davis Polk & Wardwell and former SEC Director of Enforcement.  See also “Friendly Relations? When Nepotism May Violate the FCPA,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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  • From Vol. 4 No.3 (Feb. 4, 2015)

    In Rare DPA, SEC Resolves FCPA Claims with PBSJ over Middle-Eastern Bribes

    Florida-based engineering and construction firm PBSJ Corporation (now the Atkins North America Holding Corporation) has agreed to pay $3.4 million to resolve FCPA claims with the SEC relating to bribes in Qatar and Morocco.  The claims were resolved via a Deferred Prosecution Agreement – an unusual settlement tool for the SEC.  The SEC also settled claims with Walid Hatoum, PBSJ’s former international marketing director, through an administrative proceeding.  We summarize the case and draw compliance lessons.  See also “SEC’s NPA with Ralph Lauren, the Agency’s First Ever, Modifies the M&A Due Diligence Requirements Traditionally Included in DOJ DPAs, and Outlines Specific Actions That Constitute Effective Self-Reporting,” The FCPA Report, Vol. 2, No. 9 (May 1, 2013).

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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.17 (Aug. 20, 2014)

    Supreme Court Asked to Review Landmark “Foreign Official” Decision

    After years of public debate on the topic, the definition of “foreign official” in the FCPA statute may be considered by the Supreme Court of the United States.  Joel Esquenazi and Carlos Rodriguez, sentenced to 15 and 7 years, respectively, for bribing employees of Haiti’s telecommunications company, have petitioned the high court to review the Eleventh Circuit’s decision on the meaning of an “instrumentality” of a foreign government, employees of which are deemed “foreign officials” under the FCPA.  See “What the Eleventh Circuit’s ‘Instrumentality’ Decision Means for FCPA Practitioners,” The FCPA Report, Vol. 3, No. 11 (May 28, 2014).  The FCPA Report discussed the case with Michael A. Sink, counsel for Joel Esquenazi.

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  • From Vol. 3 No.15 (Jul. 23, 2014)

    Five Corruption Risks in the Financial Services Industry

    Given the increased attention from the government, how can principals and employees of private equity firms, hedge fund managers, broker-dealers and other financial services firms – as well as their principals and employees – protect themselves from FCPA violations?  What are the most vulnerable parts of their businesses?  At a recent PracticeEdge session hosted by the Regulatory Compliance Association, “FCPA Regulation and Enforcement for Asset Managers,” Ronald Wood, a partner at Proskauer Rose; Kara Brockmeyer, Chief of the SEC’s FCPA Unit; Andrew Levine, a partner at Debevoise & Plimpton; and Paula Anderson, a partner at Shearman & Sterling, identified five major risk areas for the financial services industry and explained how companies can mitigate those risks.  See also “Compliance Leaders from Citgroup and Morgan Stanley Examine FCPA Risks and Solutions for Financial Institutions,” The FCPA Report, Vol. 3, No. 10 (May 14, 2014).

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  • From Vol. 3 No.11 (May 28, 2014)

    What the Eleventh Circuit’s “Instrumentality” Decision Means for FCPA Practitioners

    In the first appellate court decision on the issue, the U.S. Court of Appeals for the Eleventh Circuit has ruled that an “instrumentality of the government” is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” providing a non-exhaustive list of factors to consider when determining functionality and control.  The landmark decision that largely confirms the government’s interpretation of the term “foreign official” (an interpretation criticized by some as being overbroad), follows the imposition of some of the longest FCPA sentences to date.  The defendants, Joel Esquenazi and Carlos Rodriguez, had argued that the DOJ had not proved that the entity at issue, Telecommunications D’Haiti, met the FCPA’s definition of an “instrumentality” of the Haitian government such that its employees were foreign officials.  This article examines the impact of the case, the Court’s reasoning, the specific factors to consider when determining whether an entity is an instrumentality, and the practical applications of the Court’s newly-announced two-pronged test to the defendants.  For a discussion of the oral argument of the appeal, see “A Hot Bench Hears Oral Arguments in Historic Challenge to the Definition of ‘Foreign Official’,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).

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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. 3 No.10 (May 14, 2014)

    Compliance Leaders from Citigroup and Morgan Stanley Examine FCPA Risks and Solutions for Financial Institutions

    Banks and other financial institutions are subject to constant regulatory scrutiny.  Given their global reach and government touchpoints, they face constant challenges in assuring compliance with the FCPA.  At a recent program sponsored by the New York City Bar Association, Chinwe Esimai, Senior Vice President of Global Anti-Bribery & Corruption at Citigroup Inc. and Morgan Heyer, Executive Director and Global Head of Anti-Corruption Group Compliance at Morgan Stanley, considered the most pressing FCPA risks in their industries (including the recent government inquiries into banks’ hiring practices) and how their companies are handling those risks.  The panel was moderated by Kimberly A. Parker, a partner at Wilmer Hale and Claudius O. Sokenu, a partner at Shearman & Sterling.  See “How Can Financial Services Firms and Employees Avoid FCPA Liability?,” The FCPA Report, Vol. 2, No. 16 (Aug. 7, 2013).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    DOJ Green Lights the Sale of Stake in Private Business by Owner-Turned-Foreign Official to Affiliated Buyer

    Does the purchase of a closely-held business from a seller who becomes a foreign official violate the FCPA?  The DOJ’s first Opinion Procedure Release of the year examines whether a company’s payment to the foreign official, the former chief executive and minority owner of a foreign subsidiary of the company, to complete a previously contemplated buyout (but at a higher price than originally agreed) violates the FCPA.  This article scrutinizes the facts in the request and the DOJ’s decision and reasoning.  See “DOJ Clarifies Bounds of Humanitarian Aid Benefitting Foreign Officials in FCPA Opinion Release,” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.5 (Mar. 5, 2014)

    Understanding and Tackling China’s Corruption Challenges

    “The FCPA applies with special force in China due to China’s state-dominated economy and pervasive business culture where petty corruption is common and tolerated,” Professor Daniel Chow said at a recent seminar at Fordham Law School sponsored by the Chinese Business Lawyers Association.  Chow and two other panelists, Paul Hastings partner Nat Edmonds, and Dorsey & Whitney partner Thomas Gorman, along with the Honorable Denny Chin of the U.S. Court of Appeals for the Second Circuit (who gave closing remarks), discussed the unique risks companies face in China, the cultural sensitivities that make compliance difficult, the status of China’s enforcement of its own corruption laws and practical recommendations for doing business ethically in a region where many businesses can reap big rewards.  Professor Sean Griffith of Fordham Law School gave opening remarks and Associate Professor Carl Minzner moderated.  See also “Gibson Dunn Attorneys Take the Pulse of Anti-Corruption Risks in Emerging Markets,” The FCPA Report, Vol. 3, No. 3 (Feb. 5, 2014).

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  • From Vol. 3 No.3 (Feb. 5, 2014)

    Gibson Dunn Attorneys Take the Pulse of Anti-Corruption Risks in Emerging Markets

    The anti-corruption enforcement landscape is changing and emerging markets, with their endemic cultures of corruption and vast economic opportunity for many multi-national companies, are at the forefront of that change.  Many are implementing and enforcing their own laws, but the deep-seated risks of corruption still exist.  A recent panel of emerging market experts from Gibson Dunn & Crutcher LLP highlighted the current anti-corruption initiatives and trends in key foreign markets.  The presentation, “FCPA Trends in the Emerging Markets of China, the Middle East and Africa, Russia and India,” featured Gibson Dunn partners F. Joseph Warin, Benno Schwarz, Kelly S. Austin and Peter Gray.  See also “Lessons from the Latest Anti-Corruption Developments in the U.K., Brazil and China,” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013).

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  • From Vol. 3 No.2 (Jan. 22, 2014)

    Assessing the Year in FCPA Enforcement and Looking Ahead

    Following a relatively flat enforcement landscape and some bumps in the 2013 prosecutorial road, the DOJ and the SEC appear poised to spring back into action on FCPA and related anti-corruption enforcement.  Other nations have also ramped up activity in this arena by fortifying their laws and enforcement outlooks, including by bringing “carbon copy” actions.  In a guest article, T. Markus Funk and Sambo “Bo” Dul, partner and associate, respectively, at Perkins Coie LLP, take a look at the major FCPA and anti-corruption developments of 2013, as well as what may be in store for 2014.  See also “A Perspective from the FCPA Defense Bar on Brockmeyer and Duross’ ‘Year In Review’: Interview with Danforth Newcomb, of Shearman & Sterling,” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014); and “FCPA Corporate Settlements of 2013: Details, Trends and Compliance Takeaways,” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013).

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    DOJ Clarifies Bounds of Humanitarian Aid Benefitting Foreign Officials in FCPA Opinion Release

    In its only Opinion Procedure Release of 2013, the DOJ weighed in on aid to relatives of foreign officials, giving guidance to a law firm partner who wants to personally pay the medical expenses of the daughter of a foreign official – a foreign official from a country with which the law firm does business.  See “SEC Investigation of JPMorgan Hiring Practices Demonstrates FCPA Nepotism Risks,” The FCPA Report, Vol. 2, No. 17 (Aug. 21, 2013).

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  • From Vol. 2 No.25 (Dec. 18, 2013)

    What Private Fund Managers Must Know About FCPA Enforcement

    “Hedge funds are under the FCPA microscope now,” Lauren Resnick, a partner at Baker Hostetler LLP, warned at a recent panel discussing the corruption risks that private fund managers, including hedge fund managers, face.  She and her colleague Marc Kornfeld, along with James “Bucky” Canales, Chief Operating Officer of StoneWater Capital, detailed how the FCPA affects the private funds industry and what hedge fund managers and others should be doing to minimize the risk of an FCPA violation, or the violation of other global anti-bribery laws.  See also “Buyer Beware: Understanding and Mitigating Parent Company FCPA Liability in the Context of Private Equity Acquisitions,” The FCPA Report, Vol. 2, No. 15 (Jul. 24, 2013).

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  • From Vol. 2 No.22 (Nov. 6, 2013)

    DOJ FCPA Unit’s John Buretta and Shearman & Sterling’s Dan Newcomb Offer Public and Private Perspectives on Key FCPA Challenges

    At Momentum’s recent Anti-Corruption Experts conference in New York City, John Buretta – Principal Deputy Assistant Attorney General and Chief of Staff for the Criminal Division of the DOJ – reinforced the DOJ’s emphasis on continued vigorous FCPA enforcement.  “There’s no question you will see plenty of activity this year and also next year and into the foreseeable future,” Buretta said.  “You’ll be hearing about both resolutions or charges that involve all different manner of defendants at different levels of companies in various industries.”  In addition, Buretta discussed: increasing FCPA prosecution of individual defendants; enhanced DOJ resources committed to the FCPA; increased cooperation between the SEC and the DOJ, and between the DOJ and its non-U.S. counterparts; the DOJ’s view on explaining declinations; parent-subsidiary liability; and the DOJ’s perspective on travel expenses and foreign officials.  Danforth Newcomb, Of Counsel at Shearman & Sterling LLP, engaged Buretta in a clarifying dialogue on how the DOJ’s policies, perspectives and activities should inform corporate compliance efforts.  See also “Top Government and Private FCPA Practitioners Discuss Global Enforcement, Self-Reporting, Facilitation Payments, M&A Due Diligence, Jurisdiction and NPAs,” The FCPA Report, Vol. 2, No. 11 (May 29, 2013).

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    A Hot Bench Hears Oral Arguments in Historic Challenge to the Definition of “Foreign Official”

    The FCPA clearly prohibits bribes to employees of instrumentalities of foreign governments, but for many in the business world, it is by no means clear what an “instrumentality of a foreign government” is.  Is a state-owned or state-controlled hospital an instrumentality?  A telecommunications company with some government involvement?  A non-utility company in which the government has a minority but controlling interest?  By some estimates, two-thirds of recent FCPA enforcement actions have relied on the idea that an employee of a state-owned entity is a “foreign official.”  Lawyers, compliance professionals and businesspeople currently have a range of resources to turn to in understanding what constitutes an instrumentality, but none is conclusive or determinative – especially for international salespeople on the front lines of potential FCPA violations.  In a historic appeal, the Eleventh Circuit is poised to construe the meaning of “instrumentality” under the FCPA with a level of authority heretofore absent from anti-corruption jurisprudence.  The court heard oral arguments earlier this month and The FCPA Report spoke with the attorneys for defendants Joel Esquenazi and Carlos Rodriguez.  This article includes their insights on the positions of the parties and the importance of the case.  This article also discusses lower court decisions and other relevant authority on this crucial issue.

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  • From Vol. 2 No.18 (Sep. 11, 2013)

    Who Is a Foreign Official?

    The FCPA’s broad definition, and the government’s broad interpretation, of the term “foreign official” have caused many companies operating internationally serious consternation.  The definition of “foreign official” for FCPA purposes – which arguably includes any employee of an institution that has some degree of state ownership or control, based on a list of considerations – does not match up with the more narrow way the term is used in common parlance.  This disconnect and the lack of perceived clarity on the issue under U.S. law and that of other countries causes companies to struggle with identifying potential risk areas and implementing effective compliance programs.  During a recent program, leading FCPA practitioners provided valuable insight into how the government defines the critical terms and how companies should structure their policies in response to the government’s interpretations.  The panelists included James G. Tillen, a Member of Miller & Chevalier Chartered; Matteson Ellis, a Special Counsel at that firm; and Mark Gough, Deputy Head for Compliance Investigations at Siemens.   See also “The Expanding Definition of ‘Foreign Official’ and its FCPA Implications,” The FCPA Report, Vol. 2, No. 11 (May 29, 2013).

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  • From Vol. 2 No.17 (Aug. 21, 2013)

    The Essentials of the New Brazilian Anti-Corruption Legislation

    Spurred on by international pressure and massive street protests against corruption, the President of Brazil has signed sweeping new anti-bribery legislation.  The law has been a long time in coming – Brazil has been a party to the Anti-Bribery Convention of the OECD since 2000 and the United Nations Convention against Corruption since 2005; and this legislation was proposed three years ago.  Brazil, the planned site of the 2016 Olympics and the 2014 World Cup, holds enormous business potential for global companies because of its wealth of natural resources, growing middle class, relatively stable currency and other pro-development economic dynamics.  However, the country has notoriously Byzantine tax and regulatory systems, and corruption is endemic, making the business environment there difficult to navigate.  See “A Seven-Step Process for Mitigating Corruption Risk When Engaging Third-Party Consultants in Brazil,” The FCPA Report, Vol. 1, No. 7 (Sep. 5, 2012).  How will this new law change the risk landscape there?  In an interview with The FCPA Report, Andrew M. Levine, a partner with Debevoise & Plimpton LLP, explained in detail the salient points of the new law and its implications for companies doing business in Brazil.

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  • From Vol. 2 No.17 (Aug. 21, 2013)

    SEC Investigation of JPMorgan Hiring Practices Demonstrates FCPA Nepotism Risks

    Should banks with global presences be concerned that their hiring practices may cause FCPA headaches?  The recent revelation that JPMorgan Chase & Co., the nation’s largest bank, is being investigated by the SEC for possible FCPA violations stemming from its hiring of the children of two high-placed Chinese officials, may cause other banks to scrutinize who they are hiring and how they are documenting their hiring decisions, especially if the new hires are related to foreign officials.  This article discusses the JPMorgan investigation and how companies can mitigate FCPA risks in their hiring practices.  See also “Friendly Relations? When Nepotism May Violate the FCPA,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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  • From Vol. 2 No.11 (May 29, 2013)

    The Expanding Definition of “Foreign Official” and its FCPA Compliance Implications

    The shrinking global village has made international deals and dealings a daily occurrence.  Yet, a much-debated ambiguity in American law can put at risk any person or company who bestows a benefit on a foreign individual without stopping, first, to consider the definition of “foreign official” under the FCPA.  In a guest article, Ronald E. Wood and Jennifer L. Roche, partner and associate, respectively, at Proskauer Rose LLP, explore why the contours of the FCPA’s anti-bribery provision remain fuzzy 36 years after it was enacted, giving the government a hammer it has wielded with increased frequency over the past decade.  The article also offers guidance on how to avoid having the twin threats of investigation or prosecution make an unwelcome house call.  See also “U.S. Government Counters Foreign Official Challenge in the Eleventh Circuit,” The FCPA Report, Vol. 1, No. 7 (Sep. 5, 2012).

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    A Guide to Anti-Bribery Issue Spotting in China: Enforcement Trends, Third-Party Risks, Gift Giving, Travel Expenses, Foreign Officials and Due Diligence

    Recent news reports, such as the downfall of Bo Xilai, as well as reports of watchdog groups such as Transparency International, emphasize the heightened corruption risk that companies doing business in China face.  Not only does the Chinese culture value gift giving and relationship building, but, because of the government structure, a large proportion of employees there are foreign officials.  This increases the range of business activity that may give rise to FCPA liability.  Plus, China’s top leaders have been paying more attention to official corruption and have taken steps to strengthen their own laws against bribery and step up enforcement.  A recent webinar focused on the topic of Chinese corruption risk.  The panelists, partners at Gibson Dunn & Crutcher LLP and Herbert Smith Freehills LLP, discussed: the current state of anti-corruption law and enforcement in China; China-specific anti-corruption issues; FCPA enforcement actions stemming from bribery in China; and ways to mitigate the FCPA risks of doing business there.  This article summarizes the key takeaways from the webinar, focusing in particular on the lessons for companies that do business in China and lawyers that represent such companies.

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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. 2 No.4 (Feb. 20, 2013)

    How Can Anti-Money Laundering Laws Affect an FCPA Compliance Program? An Interview with Former FinCEN Director James H. Freis, Jr. (Part Two of Two)

    Though motivated by different statutes, anti-money laundering compliance programs and FCPA compliance programs deal with related risks.  Anti-money laundering laws are also integrally related to FCPA charges, and prosecutors use them frequently in FCPA enforcement actions across industries and geographies.  The FCPA Report recently spoke with the nation’s former top anti-money laundering regulator, James H. Freis, Jr., about a range of issues, including the role anti-money laundering laws play in FCPA cases, how financial regulators are working together across the globe to combat corruption and the corruption challenges facing the gaming industry in particular.  In this, the second part of our interview, Freis discussed, among other things: the connection between anti-bribery laws and broader financial reforms around the globe; how financial institutions can integrate their AML and FCPA compliance programs; the similarities and differences between Politically Exposed Persons and foreign officials; and the importance of high-profile FCPA enforcement.  In the first article in this series, Freis discussed, among other things: what companies should focus on when conducting corruption and anti-money laundering risk assessments and audits; how the DOJ and SEC work with FinCEN on corruption cases; and details regarding the formation, operation and future of the Egmont Group, a 130-member organization of international financial intelligence units.  See “Former FinCEN Director James H. Freis, Jr. Discusses the Intersection between Anti-Money Laundering and Anti-Corruption Law (Part One of Two),” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.3 (Feb. 6, 2013)

    China Clarifies and Expands Its Anti-Bribery Laws

    According to a report recently issued by the Global Compliance and Disputes Practice Group of international law firm Paul Hastings LLP, recent guidance issued by regulatory authorities in the People’s Republic of China signals that those authorities may be placing greater emphasis on pursuing the payers of bribes, as opposed to their traditional focus on the recipients of bribes.

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  • From Vol. 2 No.1 (Jan. 9, 2013)

    How Private Fund Managers Can Manage FCPA Risks When Investing in Emerging Markets

    Anti-corruption enforcement efforts have dramatically increased over the last few years.  Every day it seems there is a new headline about an investigation involving alleged violations of the FCPA.  Federal authorities have indicated that their FCPA enforcement efforts are increasingly focused on the financial services industry and, in particular, private fund managers that invest in emerging markets.  Given this heightened level of government scrutiny, it is important that private equity firms, hedge fund managers and other investors that conduct business in foreign markets understand the associated FCPA risks.  Such risks can arise in the context of raising funds overseas, working with joint venture partners and third party agents, and investing in companies that operate in countries known for corruption.  A potential misstep in these areas can result in a fund manager and its employees facing significant civil penalties and possible criminal prosecution or, at a minimum, having to respond to government subpoenas or requests for information in connection with an investigation by federal authorities, thus resulting in the unnecessary expenditure of time and money and the attraction of unwanted attention.  In a guest article, Justin V. Shur and Joel M. Melendez, partner and associate, respectively, at Molo Lamken LLP, consider some of the important and recurring FCPA risks that arise for investors in emerging markets, and offer practical guidance to help private fund managers and their employees avoid or minimize liability in this area.

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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.14 (Dec. 12, 2012)

    Chamber of Commerce Speaks Out About the FCPA Guidance

    Some FCPA practitioners have observed that the recently issued Resource Guide to the U.S. Foreign Corrupt Practices Act (Guide or Guidance) directly responded to criticism of the FCPA by the Chamber of Commerce (Chamber).  See “Top Practitioners Analyze the New FCPA Guidance (Part One of Two),” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).  The Guidance did not formally amend the FCPA and is non-binding, but it did provide hypotheticals and some clarity on application and enforcement of the statute.  Was the Chamber satisfied?  The FCPA Report recently had a far-reaching discussion with Harold Kim, Executive Vice President of the Chamber’s Institute for Legal Reform (ILR), about the Guidance.  Kim has general oversight of many of the Chamber’s federal and state initiatives relating to legal reform.  In our interview, Kim discussed: the Chamber’s FCPA advocacy efforts; its reaction to the Guidance, including the Chamber’s opinion of the Guidance relating to parent-subsidiary and successor liability; gifts and hospitality; declination decisions and compliance programs; areas where the Guidance fell short; and steps the ILR will take to move its agenda forward after the Guidance.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Comprehensive FCPA Guidance Provides a Roadmap for Companies to Reevaluate and Revise Their Compliance Policies

    On November 14, 2012, the DOJ and SEC jointly published “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (Guidance), their long-awaited and highly anticipated guidance on the FCPA.  The Guidance did not pronounce any new defenses or radically reinterpret any of the FCPA’s provisions, but it does provide useful insights into the government’s enforcement considerations and should serve as a roadmap for companies to reevaluate and revise their FCPA compliance policies.  In a guest article, Paul E. Pelletier and Aaron M. Tidman, member and associate, respectively, at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., analyze the guidance and outline how practitioners may use the guidance to update their compliance policies and procedures.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance

    On November 14, 2012, the DOJ and the SEC provided unprecedented guidance on the FCPA, releasing a Resource Guide to the Foreign Corrupt Practices Act (Guide or Guidance).  See “DOJ and SEC Jointly Issue Long-Awaited Guidance on the FCPA,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012) and the articles analyzing the Guide in this issue of The FCPA Report.  Two days later, at the American Conference Institute’s 28th Annual Conference on the Foreign Corrupt Practices Act, top officials from the DOJ and the SEC addressed the FCPA community.  In what moderator Homer Moyer, member at Miller & Chevalier Chartered, described as an “impressive exercise in transparency,” Charles Duross, the Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC and Jeffrey Knox, Principal Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, answered the legal and business community’s most pressing questions about the Guidance.  Topics addressed included: reasons for providing the Guidance; whether companies should rely on the Guidance; a company’s potential liability for the acts of a foreign subsidiary; successor liability under the FCPA; gifts and entertainment; definition of the term “foreign official”; corporate compliance programs; and corporate criminal liability.  This article relays the officials’ most noteworthy points on each of the foregoing topics.

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  • From Vol. 1 No.10 (Oct. 17, 2012)

    Friendly Relations? When Nepotism May Violate the FCPA

    The FCPA prohibits covered entities from providing, with corrupt intent, anything of value to a foreign official to obtain or retain a business advantage.  The “anything of value” prong of the FCPA is quite broad, encompassing non-cash benefits.  But what about helping the relative of a foreign official get a job or internship?  Is that too prohibited by the FCPA?  In a guest article, Joel M. Cohen and Matthew W. Knox, partner and associate, respectively at Gibson, Dunn & Crutcher LLP, discuss the form a proper employee relationship between a domestic concern and the relative of a foreign official may take.  In particular, Cohen and Knox review recent FCPA cases that included allegations of nepotism and then consider DOJ opinion releases that outline the broad contours of a defensible employment relationship between a domestic concern and the relative of a foreign official.  From these cases and releases, the authors derive practical considerations that should bear on the decision to employ otherwise qualified relatives of foreign officials.

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  • From Vol. 1 No.10 (Oct. 17, 2012)

    DOJ Issues Opinion Release Containing Guidelines on Whether a Royal Is a “Foreign Official” Under the FCPA

    On September 18, 2012, the DOJ issued its first Opinion Procedure Release of 2012 (Release), providing guidelines on whether a royal family member may be deemed a “foreign official” under the FCPA.  The definition of “foreign official” has been the subject of considerable debate and litigation in recent years.  Among the controversial issues is the DOJ’s view that “foreign officials” include employees of state-owned entities, a view that the district courts have generally accepted but that is currently being challenged before the U.S. Court of Appeals for the Eleventh Circuit.  See “Defendants in Haiti Teleco Case Urge the Eleventh Circuit to Limit ‘Instrumentalities’ to Entities that Perform Government Functions,” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012); and “U.S. Government Counters Foreign Official Challenge in the Eleventh Circuit,” The FCPA Report, Vol. 1, No. 7 (Sep. 5, 2012).  This article describes the factual background and legal analysis in the Release.

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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.7 (Sep. 5, 2012)

    U.S. Government Counters Foreign Official Challenge in the Eleventh Circuit

    In the first case to bring the issue of the definition of an “instrumentality of a foreign government” in front of an appellate court, the DOJ has replied to Joel Esquenazi and Carlos Rodriguez’s (Defendants’) opening brief.  The Defendants have argued that Teleco, a firm that provides telephone service to Haiti and that was owned by the Haitian national bank at the time of the alleged bribery, was not an instrumentality of the Haitian government because Teleco did not perform a government function.  Defendants were convicted of bribing employees of Teleco to retain business for their Florida-based communications company.  In its brief filed August 21, 2012, the DOJ says that the Defendants’ argument “contravenes bedrock principles of statutory construction and is unsupported by legislative history.”

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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)

    Shearman & Sterling Report Identifies Trends in FCPA Enforcement

    International law firm Shearman & Sterling LLP (Shearman) recently released its “FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act,” a statistical and substantive analysis of the enforcement of the FCPA in the first half of 2012.  This article summarizes Shearman’s report and discusses statistics on enforcement activity (including the common characteristics of recent settlements) and developments related to statutory issues, compliance guidelines, private litigation, anti-bribery enforcement abroad and FCPA reform.

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  • From Vol. 1 No.1 (Jun. 6, 2012)

    Defendants in Haiti Teleco Case Urge the Eleventh Circuit to Limit “Instrumentalities” to Entities that Perform Government Functions

    The elusive definition of a foreign official under the Foreign Corrupt Practices Act may finally get some clarity.  Two defendants have brought the issue squarely in front of the 11th Circuit.  Their appeals, filed May 9, 2012, mark the first time in the history of the FCPA that an appellate court has been asked to define what constitutes an instrumentality of a foreign government.  This article summarizes the background of the case and legal arguments made in the defendants’ briefs, with an emphasis on the arguments surrounding the definition of instrumentality.

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