The Anti-Corruption Report

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

Articles By Topic

By Topic: Statutes of Limitations

  • From Vol. 6 No.22 (Nov. 15, 2017)

    Broken Windows, Admissions and Stale Conduct: The State of Enforcement at the SEC

    Recent comments by top SEC enforcement officials point to a potential shift away from previous approaches, such as “broken windows” and requiring admissions in certain cases. At the same time, the SEC, operating under budget constraints that will reduce personnel, promoted Charles Cain, a member of the FCPA Unit since its formation, to head the unit. Cain’s hire “signals that FCPA is going to continue to be a priority and that the SEC is going to continue the program the way that it’s been going,” Kara Brockmeyer, a partner at Debevoise and Cain’s predecessor as the head of the FCPA Unit, told The Anti-Corruption Report. She and other former SEC officials discussed the direction of SEC enforcement, including how the budget constraints and the recent Kokesh decision may affect the cases the SEC pursues. See also “SEC and DOJ Address Corporate Concerns About Future FCPA Enforcement” (Jun. 7, 2017).

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  • From Vol. 6 No.15 (Aug. 2, 2017)

    Content Requirements in Angola Cost Halliburton More Than $29 Million in SEC Disgorgement and Penalties

    In the SEC’s first FCPA settlement of the Trump administration, Halliburton has agreed to pay disgorgement and penalties of more than $29 million for books and records and internal controls violations related to a local partner in Angola. The case may signal that SEC enforcement under Jay Clayton will continue in a similar vein as it did under the Obama administration. A former vice president at the company who circumvented numerous internal controls to close a deal settled individually as well. We spoke with a number of anti-corruption experts to digest the case and find out what companies can do to avoid similar problems. See “First FCPA Actions Under Sessions’ DOJ Are Declinations With Disgorgement” (Jul. 19, 2017).

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  • From Vol. 6 No.14 (Jul. 19, 2017)

    First FCPA Actions Under Sessions’ DOJ Are Declinations With Disgorgement 

    The Trump administration has entered the FCPA enforcement fray by issuing two declination-with-disgorgement letters under the ongoing Pilot Program. The first was for gas supplier Linde in connection with a profit-sharing arrangement between Linde’s newly acquired subsidiary and Georgian officials. The second was for CDM Smith, an engineering and construction company, and resolved issues relating to the bribery of highway officials in India in exchange for contracts. Linde agreed to disgorge $7.82 million and forfeit $3.14 million, and CDM Smith agreed to disgorge $4.04 million. “The Sessions DOJ, through these resolutions, has demonstrated its commitment to the Pilot Program through rewards to companies that timely self-disclose, cooperate, remediate and disgorge profits,” Edward Kang, a partner at Alston & Bird, told The Anti-Corruption Report. See “A Close Look at the DOJ’s New Declination-Plus-Disgorgement Settlement Approach” (Oct. 12, 2016).

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  • From Vol. 6 No.12 (Jun. 21, 2017)

    SEC Enforcement After Kokesh

    The Supreme Court’s ruling in Kokesh v. SEC is of monumental significance to companies that are struggling to track down witnesses and documents in internal investigations of anti-corruption issues that can go back decades. It would be a mistake, however, to assume that the ruling will result in a more permissive and lenient regulatory environment. On the contrary, the SEC may end up pushing much harder to settle enforcement actions on an expedited schedule, and the decision may mean that more companies end up in administrative proceedings, having to make their case on the SEC’s “home turf.” We analyze the case and how it may impact SEC enforcement going forward. See “Jay Holtmeier of WilmerHale Discusses What’s to Come After a Blockbuster Year of FCPA Enforcement” (Jan. 18, 2017).

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  • From Vol. 6 No.1 (Jan. 18, 2017)

    Jay Holtmeier of WilmerHale Discusses What’s to Come After a Blockbuster Year of FCPA Enforcement

    By the numbers, 2016 was an epic year for FCPA enforcement, witnessing more than 50 settlements with corporate fines exceeding $2 billion. Those numbers were not the only notable aspect of enforcement, as both the SEC and DOJ placed greater emphasis on compliance programs and cooperation with foreign authorities. The future of FCPA enforcement, however, is in flux with the beginning of a new administration. The FCPA Report recently spoke with Jay Holtmeier, a partner at WilmerHale, to discuss the changes 2016 brought and what we can expect in 2017 and beyond. On February 1, 2017, Holtmeier will be chairing a full-day CLE program on the FCPA hosted by Strafford in New York City and online. A 50 percent event discount code is available for FCPAR subscribers inside this article. For previous insights from Holtmeier, see “Regional Risk Spotlight: Jay Holtmeier of WilmerHale Explains How to Navigate Bureaucratic Corruption Risks in India” (Sep. 23, 2015).

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  • From Vol. 5 No.2 (Jan. 27, 2016)

    Former Prosecutor Nat Edmonds Discusses the Implications of the Recent Changes to the U.S. Attorneys’ Manual (Part Two of Two)

    The DOJ recently announced that it had revised its U.S. Attorneys’ Manual (USAM) to reflect the Department’s efforts to hold more individuals accountable for corporate criminal activity. Although the new guidelines may not represent a significant change in policy, even subtle shifts in the USAM language may affect how a company approaches anti-corruption compliance, former prosecutor Nat Edmonds, now a partner at Paul Hastings, told The FCPA Report. We share Edmond’s insights in this two-part series. See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two)” (Sep. 23, 2015); Part Two (Oct. 7, 2015).

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  • From Vol. 3 No.19 (Sep. 24, 2014)

    Defendant in Alstom/Marubeni Bribery Prosecution Tests FCPA’s Definition of “Agency” and its Reach Over Foreign Nationals

    Cases that test the government’s interpretation of the FCPA tend to be few and far between.  Lawrence Hoskins, a foreign national who worked for Alstom Holdings, SA has been charged with criminal violations of the FCPA and money laundering in connection with bribes paid by an Alstom/Marubeni consortium to secure contracts to build power plants in Indonesia.  Hoskins has moved to dismiss the indictment, challenging the government’s claim that he was an agent of Alstom’s U.S. subsidiary for purposes of FCPA liability.  He also argues that the FCPA is unconstitutionally vague and that it does not apply extraterritorially to foreign nationals in his situation.  This article examines both parties’ briefs.  See also “How Broad Is the FCPA’s Reach Over the Acts of Foreign Nationals?,” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    FCPA Implications of Recent Decisions on Judicial Monitoring of DPAs, Statutes of Limitations and Jurisdiction

    FCPA cases are often settled without litigation, and judicial interpretation of the law is relatively scarce.  A few recent cases, however, may impact how the FCPA is enforced.  A recent panel at the New York City Bar discussed five such cases and examined possible FCPA implications of these cases for prosecutors and defense counsel. The panel was moderated by John Buretta, a partner at Cravath, Swaine & Moore and included Peter Clark, a partner at Cadwalader, Wickersham & Taft; Colby Smith, a partner at Debevoise & Plimpton; and Lee Dunst, a partner at Gibson, Dunn & Crutcher.  See also “Four Ways the SEC Enforcement Landscape Is Changing and Why They Matter,” The FCPA Report, Vol. 2, No. 24 (Dec. 4, 2013).

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    How Broad Is the FCPA’s Reach Over the Acts of Foreign Nationals?

    Within the last few months, U.S. courts, the Department of Justice and the Securities and Exchange Commission clarified the reach of the FCPA over foreign nationals, and courts determined that physical presence is required to begin the statute of limitations for bribery claims.  In a guest article, Palmina M. Fava and Mor Wetzler, partner and associate, respectively, at Paul Hastings LLP, distill important takeaways from those authorities and provide insight on those issues, harmonizing the holdings of SEC v. Straub and SEC v. Sharef and the FCPA Resource Guide.

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  • From Vol. 2 No.4 (Feb. 20, 2013)

    One U.S. District Court in New York Affirms Broad Jurisdictional and Temporal Reach of the FCPA While Another Dismisses FCPA Case for Lack of Contacts

    Two federal judges sitting in the Southern District of New York recently reached different conclusions regarding how far the FCPA reaches.  Together, the two decisions provide legal analysis relevant to corporate decision-making on: the role of e-mail and computer servers in conferring jurisdiction over FCPA defendants; the interaction between preparation of SEC filings and jurisdictional questions; the level of authority over a bribe or cover up required to trigger jurisdiction; statute of limitations questions; and other topics.  This article analyzes both decisions.

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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.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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