The Anti-Corruption Report

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

Articles By Topic

By Topic: Enforcement Trends

  • From Vol. 7 No.8 (Apr. 18, 2018)

    The History and Reach of dd-3 Jurisdiction and Lessons for Companies Investigating Potential Violations

    Commonly referred to as the “territorial jurisdiction” provision of the FCPA, 15 U.S.C. § 78dd-3 receives considerably less attention than the provisions governing issuers (§ 78dd-1) and domestic concerns (§ 78dd-2). However, in light of the government’s willingness to test the bounds of dd-3, and its use of dd-3 as a basis for recent resolutions in cases where the conduct at issue occurred largely outside the United States, the potential reach of dd-3 is worth renewed attention. In a guest article, Aisling O’Shea and Colin Missett, attorneys at Sullivan & Cromwell, track the government’s use of dd-3 over the years, consider whether recent use of the territorial jurisdiction provision suggests an enhanced or renewed focus on it and offer guidance as to how the potential scope of dd-3 may be taken into account when conducting internal investigations. See “Hoskins Provides an Opportunity for Judicial Determination of the FCPA’s Jurisdiction,” (Oct. 8, 2014); and “For Now, Hoskins Sets a Limit on the FCPA’s Jurisdictional Reach,” (Sept. 23, 2015).

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  • From Vol. 7 No.8 (Apr. 18, 2018)

    ACR Program Examines FCPA Enforcement and Local Anti-Corruption Efforts in China and Singapore

    Asia has long been the most active region for FCPA enforcement actions and investigations. China, which over the past nine years has had more than three dozen actions involving conduct in the pharmaceuticals, technology, manufacturing and other industries, has recently launched its own anti-corruption regime with a new super agency to enforce it. Additionally, the Keppel Offshore & Marine settlement (involving a decade of bribery committed by the world’s largest oil-rig builder) in late 2017 brought Singapore into the anti-corruption spotlight. During a recent program presented by The Anti-Corruption Report, local experts examined FCPA enforcement as well as local anti-corruption efforts in China and Singapore, challenges in conducting internal investigations in China, and the role of whistleblowers in the region. See “Practitioners Take the Pulse of Anti-Corruption Compliance and Enforcement in China” (Mar. 15, 2017).

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  • From Vol. 7 No.8 (Apr. 18, 2018)

    DOJ Steers the Compliance Conversation Toward Culture

    Under the current administration, the DOJ continues to stress the importance of a company’s culture in preventing corruption, Philip Bezanson and Kevin Collins, both partners at Bracewell, stated at a recent Strafford panel where they discussed the DOJ’s compliance expectations and detailed how companies can shield themselves with compliance programs that demonstrate an appropriate compliance culture. See also “Effective Compliance Programs Reject Checklist Approach and Focus on Culture and Behavior” Nov. 29, 2017).

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  • From Vol. 7 No.7 (Apr. 4, 2018)

    Any Decrease in FCPA Enforcement Under Trump Will Be Overshadowed by International Enforcement, Experts Predict

    International enforcement of anti-corruption laws is on the rise, FCPA practitioners speaking at a recent event at George Washington University Law School said. They agreed that despite a potential decrease in enforcement under the Trump administration, the pace of enforcement beyond U.S. borders is significant enough that companies should remain vigilant. This article examines the implication of enforcement trends and the practical takeaways for companies conducting internal investigations. See “Massive Telia Settlement Indicates International Cooperation Will Continue Under New Administration” (Oct. 4, 2017).

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  • From Vol. 7 No.3 (Feb. 7, 2018)

    Analyzing 2017 SEC Enforcement Activities and Their 2018 Implications

    With a new director and two appointees, the SEC is at its full complement of five for the first time in two years. Fiscal year 2017 saw enforcement developments in the areas of disgorgement, whistleblowers, individual accountability, cybersecurity and cryptocurrencies, the ALJ regime and attorney-client privilege. During a recent webinar hosted by Securities Docket, “A Review of SEC Enforcement in 2017 and What’s Ahead for 2018,” WilmerHale partner William R. McLucas, Linklaters partner Doug Davison, along with Martin Wilczynski and Steven E. Richards, both senior managing directors at Ankura Consulting Group, analyzed these and other developments and their implications for practitioners. See “Top FCPA Officials Discuss How International Cooperation and Individual Prosecutions Are Reshaping Anti-Corruption Enforcement, the Defense Bar Responds” (Dec. 13, 2017).

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  • From Vol. 7 No.2 (Jan. 24, 2018)

    Lessons Learned From the First-Ever French Convention Judiciaire d’Intérêt Public Concluded With HSBC

    On October 30, 2017, less than a year after the enactment of France’s new anti-corruption law known as Sapin II, which created a new settlement tool for use in connection with certain corporate criminal investigations, HSBC Private Bank Suisse SA (HSBC PRBA) entered into a convention judiciaire d’intérêt public (CJIP), France’s first-ever corporate resolution mechanism. In a guest article, Bryan Sillaman, a partner in Hughes Hubbard’s Paris office, and his associate, Marie-Agnès Nicolas, explain that although questions remain regarding certain CJIP-related provisions of Sapin II, the resolution with HSBC PRBA provides a helpful starting point to assess how such agreements will be structured in light of Sapin II’s statutory framework and the procedural requirements of the French legal system. See “Despite Anemic Prosecutions, France Moves Toward Increased Anti-Corruption Enforcement” (Oct. 26, 2016).

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  • From Vol. 7 No.2 (Jan. 24, 2018)

    SEC Signals Aggressive Stance on Individual Responsibility, Including Potential CCO Liability, in FY 2017 Annual Report

    Although the Trump administration has sought to create a more business-friendly environment, the implications of the White House’s rhetoric for regulated entities remains nuanced and complex. Corporate executives who may not have had direct responsibility for enforcing internal compliance policies are finding their roles, and potential liability, in flux. When violations occur, CCOs may find themselves on the hook even if they have tried to warn management of compliance deficiencies and failures and even if they had no analogous liability in the past. Meanwhile FCPA enforcement remains a big money-maker for the SEC. All these themes came across in the annual report for fiscal year 2017 issued by the SEC’s Division of Enforcement. This article analyzes the report, along with insights from legal professionals with expertise in SEC enforcement matters. See “Broken Windows, Admissions and Stale Conduct: The State of Enforcement at the SEC” (Nov. 15, 2017).

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  • From Vol. 6 No.24 (Dec. 13, 2017)

    Top FCPA Officials Discuss How International Cooperation and Individual Prosecutions Are Reshaping Anti-Corruption Enforcement, the Defense Bar Responds

    2017 has been a year of change in many arenas, and anti-corruption enforcement is no exception. The number of corporate settlements is down from 2016, but there has been a significant increase in individual prosecutions and the level of international cooperation. At ACI’s 34th Annual International Conference on the Foreign Corrupt Practices Act, officials from both the SEC and DOJ discussed the year that was and what is to come from FCPA enforcement. The Anti-Corruption Report spoke to star defense attorneys to get their perspective on the key trends. See “DOJ Seeks to Reassure on FCPA Enforcement” (Apr. 16, 2017).

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  • From Vol. 6 No.24 (Dec. 13, 2017)

    Rosenstein Announces New FCPA Corporate Enforcement Policy and Promises Ongoing Enforcement

    Nearly a year into the new administration, the DOJ’s stance on the FCPA is consistent enough to dispel most speculation about lax enforcement in the Trump era. Despite the President’s stated distaste for the law, prosecutions continue and DOJ officials consistently pledge to enforce the Act, although their remarks often take on a pointedly business-friendly tone. In a speech given at ACI’s 34th Annual International Conference on the Foreign Corrupt Practices Act, Deputy Attorney General Rod Rosenstein continued that trend, promising ongoing FCPA enforcement while stressing that enforcement should create a “level playing field” that “protects citizens and honest businesses.” The highlight of his speech was the announcement of a new DOJ FCPA Corporate Enforcement Policy, which will be discussed in detail in an upcoming issue of The Anti-Corruption Report. See “From FCPA Prosecutor to Company Protector: An Insiders’ View on the Current Climate” (Nov. 15, 2017).

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  • 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.22 (Nov. 15, 2017)

    From FCPA Prosecutor to Company Protector: An Insiders’ View on the Current Climate

    Although the election of a president who has disparaged the FCPA has companies curious about the future of the law, DOJ insiders argue that enforcement will continue and so should company compliance efforts. During SCCE’s Annual Compliance and Ethics Institute, Rebecca Rohr, vice president and associate general counsel at Hewlett Packard Enterprise, and former principal deputy chief of the Fraud Section, Paul Hastings’ Nat Edmonds, both former prosecutors, shared their take on how best to protect companies in the shifting enforcement environment. The duo argued that career prosecutors committed to the FCPA, a lack of legislative action and the ongoing trend of international enforcement indicate that U.S. anti-corruption enforcement will continue despite Trump’s stated criticism. They also discussed the ongoing Pilot Program and provided a comprehensive chart of all cases decided since its inception, which is included in this article. See also “Current and Former FCPA Officials Debate Enforcement Trends and Strategies” (May 24, 2017) and “DOJ Seeks to Reassure on FCPA Enforcement” (Apr. 26, 2017).

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  • From Vol. 6 No.21 (Nov. 1, 2017)

    Stars of the FCPA Bar Discuss Recent Enforcement Developments

    While the pace of FCPA enforcement may have slowed in recent months, there are still plenty of developments in anti-corruption enforcement to digest. At a recent panel hosted by the New York City Bar, anti-corruption veterans discussed DPAs, monitors, international cooperation and individual prosecutions in the FCPA space. The panel included Sarah Coyne, a partner at Weil, Laurence Urgenson, a partner at Mayer Brown, and Richard Grime, a partner at Gibson Dunn. The panel was moderated by Danforth Newcomb, of counsel at Shearman & Sterling. See “Top SEC Officials Put Mr. and Ms. 401K at the Forefront but Say No Big Changes to Enforcement to Come” (Sep. 20, 2017).

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  • From Vol. 6 No.20 (Oct. 18, 2017)

    Are U.K. Enforcement Authorities Sending the Wrong Message to Companies?

    To date, 2017 has been a record year for anti-corruption enforcement in the U.K. The last eight months of enforcement have included the largest ever fines for a company, the longest ever sentences for individuals and the greatest number of individuals convicted. In a guest article, Gibson Dunn’s Patrick Doris and Mark Handley analyze the recent developments, explain what the two most recent convictions of companies for corruption reveal about the current state of enforcement in the U.K. and what the government may be communicating to companies. See “SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement” (Mar. 1, 2017).

     

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  • From Vol. 6 No.19 (Oct. 4, 2017)

    Massive Telia Settlement Indicates International Cooperation Will Continue Under New Administration

    Swedish telecommunications company Telia, along with its Uzbek subsidiary Coscom, has agreed to settle bribery allegations with the SEC, DOJ, Dutch and Swedish authorities for the eye-watering sum of $965 million in criminal penalties and disgorgement. While the settlement amount is one of the highest in FCPA history, the company was able to obtain a DPA and avoid a monitor through extensive cooperation and remediation efforts. The facts at issue closely mirror those in VimpelCom’s settlement in 2016, but the companies were treated differently by the government. We analyze the case and the outcome. See “VimpelCom Settlement Highlights U.S. Government’s New Holistic Approach to Anti-Corruption Enforcement” (Feb. 24, 2016).

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  • From Vol. 6 No.18 (Sep. 20, 2017)

    Top SEC Officials Put Mr. and Ms. 401K at the Forefront but Say No Big Changes to Enforcement to Come

    As we move deeper into the Trump administration with few settlements and enforcement actions to indicate what our new regulators are thinking, public statements from enforcement officials are becoming increasingly relevant. At a recent event co-hosted by the Institute for Corporate Governance and Finance, the Program on Corporate Compliance and Enforcement and the Pollack Center for Law & Business at the New York University School of Law, SEC Chair Jay Clayton, along with Stephanie Avakian and Steven Peikin, Co-Directors of the SEC Division of Enforcement, gave some insights on what SEC enforcement may look like going forward. See “DOJ Reiterates Commitment to FCPA Enforcement but Resources May Become an Issue” (Jul. 19, 2017).

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  • From Vol. 6 No.18 (Sep. 20, 2017)

    Significant Sentences May Signal Continuing Commitment to Individual FCPA Enforcement

    Several recent sentencings of individuals for FCPA violations or related matters may not have shed much light on corporate FCPA enforcement in the Trump administration, but could point towards a continued commitment to individual prosecutions. The 2017 sentencings of Mahmoud Thiam, Dmitrij Harder and Samuel Mebiame for crimes associated with corruption “certainly represent significant white collar prison terms designed to punish the offenders and deter similar conduct,” observed Richard Hartunian, a partner at Manatt and the former United States Attorney for the Northern District of New York. The Anti-Corruption Report analyzes these developments in individual FCPA enforcement. See “DOJ Reiterates Commitment to FCPA Enforcement but Resources May Become an Issue” (Jul. 19, 2017) and “SEC and DOJ Address Corporate Concerns About Future FCPA Enforcement” (Jun. 7, 2017).

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  • From Vol. 6 No.16 (Aug. 16, 2017)

    How the SEC May Circumvent the Five-Year Statute of Limitations on Disgorgement Under Kokesh v. SEC

    The U.S. Supreme Court’s recent decision in Kokesh v. SEC that the disgorgement remedy available to the SEC is restricted by a five-year statute of limitations was widely seen as a victory for entities that are subject to the enforcement arm of the SEC. However, in a guest article, Justin Shur, a partner at MoloLamken, along with associate Eric Nitz, argue that it is unlikely that the Commission’s Division of Enforcement will take the Kokesh decision lying down. Rather, the Commission is likely to adopt strategies to mitigate the impact of the Court’s decision on its ability to seek penalties and disgorgement from companies. Shur and Nitz outline those potential strategies and their impact on companies. See “SEC Enforcement After Kokesh” (Jun. 21, 2017).

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  • From Vol. 6 No.15 (Aug. 2, 2017)

    Former SEC and DOJ Attorneys Discuss Thorny FCPA Questions on Jurisdiction and Liability

    One distinguishing factor of the FCPA is the “manifest and obvious gap between what the statute provides, and how it is enforced by the regulatory agencies,” Laurence Urgenson, a partner at Mayer Brown, observed at PLI’s Foreign Corrupt Practices Act and International Anti-Corruption Developments 2017 event. That gap and the lack of judicial scrutiny of the law can invite ambiguity. Urgenson, and his fellow former federal prosecutors Philip Urofsky, a partner at Shearman & Sterling, Bruce Yannett, a partner at Debevoise, Thomas Hanusik, a partner at Crowell & Moring, along with Richard Grime, a partner at Gibson Dunn and former Assistant Director of the SEC Division of Enforcement, discussed some of these unresolved issues at the PLI event, sharing candid insights about how the government “stretches” the statute, and how the statute can reach subsidiaries, people and successors, including ways to lessen potential liability. See also “2016 Brought Heavy Enforcement, a Flurry of Settlements and Disruption to the FCPA Space” (Mar. 1, 2017).

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  • From Vol. 6 No.14 (Jul. 19, 2017)

    DOJ Reiterates Commitment to FCPA Enforcement but Resources May Become an Issue

    Despite a slowdown in settlement activity since they took power, Trump administration officials have been quick to reassure the anti-corruption compliance community that FCPA enforcement will remain a priority. In a recent presentation during ACI’s Advanced Forum on FCPA and Anti-Corruption in the Life Sciences Industry, Sandra Moser, the Acting Chief of the Fraud Section, and James Loonam, the Deputy Chief of the Business and Securities Fraud Section at the U.S. Attorney’s Office for the EDNY, echoed the statements of DOJ leadership. They promised continued enforcement, robust investigations of individuals and ongoing transparency. The Anti-Corruption Report discussed the government’s presentation with several prominent members of the FCPA defense bar who agreed that enforcement is likely to continue but warned that as priorities shift, so may DOJ resources. See “DOJ Seeks to Reassure on FCPA Enforcement” (Apr. 26, 2017).

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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.12 (Jun. 21, 2017)

    Channeling the Channel-Partner Risk: Addressing Anti-Corruption Risk with Channel Partners in the Technology Sector

    In the software and hardware businesses, the use of channel partners – entities that pair with manufacturers to market and sell products, services and technology – often presents unique compliance challenges. To assist with navigating these risks, Nicola T. Hanna and Michael M. Farhang, partners at Gibson Dunn, along with associates Pedro G. Soto and Caitlin S. Peters, explore some of the recent enforcement actions in the software and hardware sector, identify the principal themes in those actions and propose best compliance practices. See “Excessive Power for Junior Employees and Lavish Trips for Foreign Officials Lead to $28 Million PTC Settlement” (Feb. 24, 2016).

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  • From Vol. 6 No.11 (Jun. 7, 2017)

    SEC and DOJ Address Corporate Concerns About Future FCPA Enforcement

    Amid continuing uncertainty about FCPA enforcement in the Trump administration, regulators are highlighting the global community’s dedication to anti-corruption enforcement. At the same time, they are defending the U.S. regime’s transparency and reach, but with a more business-focused frame of reference. Acting Principal Deputy Assistant Attorney General Trevor McFadden stressed international coordination and cooperation in a recent speech in São Paolo, Brazil. Andrew Weissmann, head of the DOJ’s Fraud Division, and Andrew Calamari, Director of the SEC’s New York Regional Office, echoed that international focus, and discussed enforcement trends – including some numbers from the first year of the Pilot Program – and corporate concerns at a recent PLI panel. See “Current and Former FCPA Officials Debate Enforcement Trends and Strategies” (May 24, 2017).

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  • From Vol. 6 No.10 (May 24, 2017)

    Regional Risk Spotlight:  Rafael Jimenez-Gusi Discusses Corruption Perceptions and Compliance Expectations in Spain

    By passing amendments to its anti-corruption laws in 2015, Spain placed itself at the vanguard of countries that are encouraging companies to implement strong compliance programs. The FCPA Report recently spoke with Rafael-Jimenez Gusi, a partner at Baker McKenzie based in Barcelona, about the new law, Spain’s current enforcement environment and what companies can do to take advantage of the country’s innovative compliance defense. See “Regional Risk Spotlight: Aisha Abdallah Discusses Corruption and Compliance Practices in Kenya” (Apr. 26, 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.10 (May 24, 2017)

    Current and Former FCPA Officials Debate Enforcement Trends and Strategies

    How much will FCPA enforcement change under the Trump administration and how well do key enforcement strategies work? Top FCPA attorneys offered their insights on what to expect from the new administration during a recent PLI seminar and debated the merits of enforcement strategies, including international cooperation, the use of monitors in settlements and the DOJ’s pursuit of criminal internal-control charges. See “Embraer Global Settlement Presages a New Paradigm in International Enforcement and Next-Level Compliance” (Dec. 7, 2016).

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  • From Vol. 6 No.8 (Apr. 26, 2017)

    DOJ Seeks to Reassure on FCPA Enforcement

    A flurry of FCPA settlements preceded the inauguration of President Donald Trump, with the last – Las Vegas Sands – made public at 7 p.m. the day before he was sworn into office. Since then, all has been quiet on the FCPA front. The new Attorney General, Jeff Sessions, has made it clear that the DOJ’s enforcement priority will be violent crimes, which has left many practitioners wondering what kind of FCPA enforcement to expect from the new administration. In three recent speeches, DOJ officials have said that white-collar crime, including the FCPA, will remain a focus for the DOJ. And, according to Nathaniel Edmonds, a partner at Paul Hastings, the DOJ has recently made offers to several companies under investigation and a new spate of settlements may be coming down the pike. See “DOJ’s Guidance Shows That Compliance Programs Still Matter” (Mar. 15, 2017).

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  • From Vol. 6 No.4 (Mar. 1, 2017)

    2016 Brought Heavy Enforcement, a Flurry of Settlements and Disruption to the FCPA Space

    With a record number of settlements that included unprecedented penalties and global cooperation, 2016 was a banner year for FCPA enforcement. At a recent Strafford program, WilmerHale partner Kimberly Parker and Gibson Dunn partner Lee Dunst made sense of all the action and explained how FCPA enforcement metrics and activities demonstrate a strong federal commitment to anti-corruption enforcement that is likely to continue despite the recent change in administration. We distill the takeaways from the panel. For the SEC and DOJ’s thoughts on the year in enforcement, see “Top FCPA Officials Encourage Strong Compliance Programs and Remediation, the Defense Bar Responds” (Dec. 21, 2016); “Government and Defense Bar Perspectives on the New Weapons in the FCPA Arsenal” (Dec. 21, 2016).

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  • From Vol. 6 No.2 (Feb. 1, 2017)

    A New Era in FCPA Disclosure

    In the past few years, U.S. enforcement authorities have heightened their rhetoric surrounding voluntary and complete self-disclosure. New policies and rules issued by the government strongly encourage and incentivize disclosure in unprecedented ways. At the same time, an alarming increase in data leaks and the ever-present danger of whistleblowers threaten to reveal or force the disclosure of company information and secrets at every turn. In a guest article, Lara A. Covington, a partner in the Washington, D.C., office of Holland & Knight, and Lisa A. Prager, a partner in the firm’s New York office, explain that the net effect of these internal and external pressures is that U.S. companies have never faced more inducements to disclose potential FCPA violations nor higher risks of inadvertently disclosing them. See The FCPA Report’s three-part series on the DOJ’s Pilot Program: “Going Deep on the Fraud Section’s FCPA Pilot Program” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting?” (May 4, 2016); and “Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program” (May 18, 2016).

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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.25 (Dec. 21, 2016)

    Government and Defense Bar Perspectives on the New Weapons in the FCPA Arsenal

    The SEC and DOJ have new weapons in their arsenal to fight corruption. Increased personnel, coordinated global investigations and new forms of settlement are changing the face of FCPA enforcement, officials said during ACI’s 33rd International Conference on the FCPA in Washington, D.C. The FCPA Report talked to defense lawyers to gauge their reaction to the government’s statements, and how the government’s enforcement approach affects the advice they give companies. See our coverage of last year’s ACI panel, “Top FCPA Enforcers Discuss Evolving and Diverging Enforcement Approaches and the Defense Bar Responds” (Dec. 2, 2015).

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  • From Vol. 5 No.24 (Dec. 7, 2016)

    Ceresney and Yates Continue to Stress Individual Accountability, Voluntary Reporting and Cooperation

    Individual accountability is “a core value of our criminal justice system that perseveres regardless of which party is in power,” Deputy Attorney General Sally Q. Yates said at ACI’s recent FCPA conference, adding that she therefore expects the DOJ’s focus on individual accountability to continue into President-Elect Trump’s administration. She and Andrew J. Ceresney, the Director of the SEC Division of Enforcement, each delivered keynote addresses at the conference, emphasizing the DOJ and SEC’s focus on individual accountability and reiterating the now-familiar theme of the benefits of voluntary disclosure and cooperation. They spoke on the growing trend of international cooperation and what to expect from the new administration when it comes to anti-corruption enforcement. See “Yates on the Yates Memo” (May 18, 2016).

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    DOJ and SEC Continue to Stress the “Holy Trinity of Self-Disclosure, Cooperation and Remediation 

    Big cases, lengthy investigations and robust enforcement of the FCPA are the hallmarks of 2016, noted commentators at a recent Practicing Law Institute panel on FCPA developments. “This was a very good year for SEC FCPA enforcement,” said Neil Smith, Senior Counsel with the SEC Division of Enforcement. Expanded enforcement can be chalked up to a committed workforce, good relations between the SEC and DOJ and “strong partnerships overseas where we continue to leverage our contacts with foreign regulators, foreign criminal authorities and other folks to bring about enforcement,” he said. According to James Loonam, Deputy Chief of the Business and Securities Fraud Section of the U.S. Attorney’s Office in the Eastern District of New York, DOJ enforcement also remains strong. See “Top FCPA Enforcers Discuss Evolving and Diverging Enforcement Approaches and the Defense Bar Responds” (Dec. 2, 2015).

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  • From Vol. 5 No.11 (Jun. 1, 2016)

    Current and Former Agents Discuss the Five Pillars of the FBI’s FCPA Strategy

    In conjunction with the announcement of the FCPA Unit’s Pilot Program in April, the DOJ noted that the FBI has recently established three new squads of special agents who will focus on FCPA and anti-money laundering investigations. These three International Corruption Squads, “should send a powerful message that FCPA violations that might have gone uncovered in the past are now more likely to come to light,” said Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division in a press release. At an invitation-only event hosted by global consulting firm Protiviti and at ACI’s 18th Annual New York Conference on the FCPA, current and former FBI agents explained that the FBI’s strategy for fighting international corruption is built on five pillars and discussed how the strategy will affect FBI FCPA investigations going forward. See “Going Deep on the Fraud Section’s FCPA Pilot Program (Part One of Three)” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting? (Part Two of Three)” (May 4, 2016); “Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program (Part Three of Three)” (May 18, 2016).

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  • From Vol. 5 No.11 (Jun. 1, 2016)

    SEC’s Brockmeyer, DOJ’s Kahn Discuss Recent FCPA Enforcement Trends

    So far, 2016 has been an eventful year in FCPA enforcement. During a recent PLI panel, the SEC’s Kara N. Brockmeyer and the DOJ’s Daniel S. Kahn shared their perspectives on the DOJ pilot program, the Yates Memo, voluntary disclosures, individual accountability, cooperation among regulators, internal investigations and commercial bribery. The panel also featured insights on the enforcement climate from private practitioners Charles E. Duross and Lucinda A. Low. See also The FCPA Report’s three-part series on the pilot program: Part One (Apr. 20, 2016); Part Two (May 4, 2016); and Part Three (May 18, 2016).

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  • From Vol. 5 No.10 (May 18, 2016)

    Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program (Part Three of Three)

    The main purpose of the Fraud Section’s FCPA pilot program appears to be to encourage companies to step forward and self-report when they learn of a possible violation. Companies that do so will be rewarded – but only if they cooperate with the DOJ fully. Encouraging companies to cooperate in investigations has been an underlying theme of the government’s messaging for years, but exactly what constitutes such full cooperation has never been laid out as clearly as it is in the FCPA Unit Guidance. However, several questions remain for companies considering cooperation. This final article in The FCPA Report’s series taking a deep look at the new pilot program addresses these areas of ambiguity and how they might influence a company’s willingness to cooperate. See previously “Going Deep on the Fraud Section’s FCPA Pilot Program (Part One of Three)” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting? (Part Two of Three)” (May 4, 2016).

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  • From Vol. 5 No.10 (May 18, 2016)

    Yates on the Yates Memo

    Depending on which client alert one reads from the defense bar, the DOJ’s new policy on pursuing individual wrongdoing has meant that the “sky is falling” or that nothing has changed at all, according to Deputy Attorney General Sally Q. Yates. In her remarks at the recent New York City Bar White Collar Crime Institute, she noted that “the truth, as it often is, is somewhere in the middle.” Conceding that before her eponymously titled memo, the DOJ sometimes gave companies cooperation credit even when companies didn’t identify any individuals, she described what has changed since the Yates Memo has taken effect. See “How Will the Yates Memo Change DOJ Enforcement?”: Part One (Sep. 23, 2015); Part Two (Oct. 7, 2015).

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  • From Vol. 5 No.9 (May 4, 2016)

    How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting? (Part Two of Three)

    Over the last year, the DOJ has made a number of policy statements that make it abundantly clear that it wants companies’ help in identifying and prosecuting corruption. The Yates Memo and changes to the U.S. Attorneys’ Manual drove home the Department’s focus on prosecuting individuals. Its recent announcement of a pilot program, specific to the Fraud Section’s FCPA Unit, underlined the Department’s desire for companies to come forward and self-report FCPA violations. As discussed in the first article in this three-article series, while the program may not represent much of a change in enforcement, it was meant to increase transparency on how prosecution and settlement decisions are made within the FCPA Unit. However, several aspects of the program and the related guidance fail to clear up concerns companies have raised in the past and, in some instances, introduce greater confusion. The FCPA Report spoke with former DOJ prosecutors to get their insights on this uncertainty and how the pilot program might – or might not – change a company’s self-disclosure calculus. See “Ceresney and Caldwell Remarks Highlight New SEC Self-Reporting Policy, Cooperation, Remediation and Transparency” (Dec. 2, 2015).

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  • From Vol. 5 No.9 (May 4, 2016)

    Employee Interviews in Internal Investigations After Yates: A Conversation With Quinn Emanuel and EY

    Although the long-term impact of the recent policy developments coming out of the DOJ is not certain, one thing appears to be – the Yates Memo will change the tenor of employee interviews conducted during internal investigations. In the past, employees might have been eager to participate to save their jobs, but now many more may be reluctant to cooperate with investigators at all, or may put conditions on their participation. The FCPA Report spoke with Quinn Emanuel partners William Burck and Ben O’Neill, as well as Stephen Spiegelhalter, a principal in the fraud investigations and dispute services practice at EY, about the new reality of interviewing employees during investigations. On May 16, 2016, Burck, O’Neill and Spiegelhalter will participate in a symposium hosted by Quinn Emanuel and The FCPA Report on this and other issues related to conducting internal investigations and negotiating with the government in light of the Yates Memo and the new DOJ Pilot Program. For more information on the symposium and to register, please contact Max Humphrey at mhumphrey@fcpareport.com.

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  • From Vol. 5 No.9 (May 4, 2016)

    Effective FCPA Compliance Strategies in the Wake of the Panama Papers

    The Panama Papers leak of 11.5 million documents related to offshore banking and the use of shell companies in “tax havens” has ushered in a period of renewed focus on monitoring, tracking and justifying transactions with offshore companies, particularly those in low or no tax jurisdictions that lack transparency. In a guest article, Nicholas M. Berg and Kim B. Nemirow, partners at Ropes & Gray, and Jaime Orloff Feeney, an associate there, analyze the developments in the Panama Papers case, the potential liability theories stemming from the case, how the case has changed the FCPA enforcement environment, and how companies can ensure their controls are sufficiently tailored to the various risks presented by anonymous shell corporations. See “Structuring FCPA Books and Records Controls to Withstand SEC Scrutiny Without Impairing Sales” (Mar. 20, 2013).

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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. 5 No.1 (Jan. 13, 2016)

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

    In November 2015, Deputy Attorney General Sally Quillian Yates announced that the section of the U.S. Attorneys’ Manual (USAM) codifying the principles governing the prosecution of business organizations had been updated to reflect the DOJ’s efforts to hold more individuals accountable for corporate criminal activity. Yates said the changes, which are publicly available, will give companies insight into how the government’s policy will be applied during the “everyday work” of federal prosecutors. Former prosecutor Nat Edmonds, now a partner at Paul Hastings, told The FCPA Report that the changes don’t indicate an actual “policy shift,” but rather a “formalization” of DOJ best practices. Yet, he emphasized, the subtle shifts in the USAM language may require a change in strategy when a company is faced with an FCPA investigation. We share his insight in a two-part series. See also “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. 5 No.1 (Jan. 13, 2016)

    Examining New DOJ Compliance Counsel Hui Chen’s Four Elements of a Successful Compliance Program

    Hui Chen, the first-ever compliance counsel to the Fraud Section at the DOJ, described her new role as a “bridge between the compliance community and the prosecutors at the Fraud Section” in remarks at the ACI FCPA Conference shortly after she started at the DOJ in late 2015. The former prosecutor and compliance officer outlined the elements of a healthy compliance program that she will be looking for as she makes her assessments. The FCPA Report discussed these elements with experts who have both in-house and prosecutorial experience to determine the reasonableness of these expectations and what else companies need for a strong program. See “DOJ Compliance Counsel Hui Chen Is on the Job and Looking for Key Aspects of Strong Compliance Programs” (Nov. 18, 2015).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Brockmeyer and Stokes Offer Four Benefits of Cooperation and Four Ways Companies Can Go Wrong in Their Internal Investigations

    As government enforcers become increasingly sophisticated about business practices and bribery – and adjust their strategies accordingly – companies can be left befuddled as to what is expected from them.  In our previous issue, The FCPA Report analyzed the DOJ and SEC’s changing approaches in detail based on the “Year in Review” panel at this year’s ACI FCPA conference.  During that panel Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, also clarified their expectations for companies and their compliance programs.  The FCPA Report spoke to several anti-corruption defense experts to find out whether these expectations are reasonable and how companies can best meet them.  For coverage of last year’s panel, see “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014); and “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    Top FCPA Enforcers Discuss Evolving and Diverging Enforcement Approaches and the Defense Bar Responds

    International cooperation and whistleblowers are changing the government’s investigations and resolutions according to top FCPA enforcers.  Due to these changes – and the ever-increasing sophistication of both the SEC and DOJ – the agencies’ goals, strategies and tactics continue to evolve and diverge based on their statutory remits.  At this year’s ACI FCPA conference, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, distilled the government’s enforcement priorities in their “Year in Review” discussion, and The FCPA Report spoke to several anti-corruption defense experts for their reactions.  Stokes and Brockmeyer also discussed what they expect from compliance programs as well as the incentives they offer companies to self-report, cooperate and remediate, which will be discussed at length, with input from the FCPA bar, in our next issue.  For coverage of last year’s panel see “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014) and “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    Ceresney and Caldwell Remarks Highlight New SEC Self-Reporting Policy, Cooperation, Remediation and Transparency

    The government’s keynote speeches at ACI’s recent FCPA Conference featured familiar tunes, but a few of the lyrics were new.  Andrew J. Ceresney, the Director of the SEC Division of Enforcement, and Leslie R. Caldwell, Assistant Attorney General of the DOJ Criminal Division, offered their views on their respective agency’s recent FCPA enforcement activity, focusing, as they usually do, on the benefits of self-reporting, cooperation and remediation by companies that discover misconduct.  Ceresney made an announcement about a new SEC policy regarding self-reporting and promised aggressive enforcement.  Meanwhile, Caldwell opined on the Yates memo and its effect on internal investigations and promised to continue increasing transparency.  For coverage of Ceresney and Caldwell’s speeches during the 2014 ACI program see “Caldwell and Ceresney Push Companies on FCPA Compliance, Cooperation and Self-Reporting,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    How the Expanding Petrobras Scandal May Spark a New Era of Multi-Lateral Enforcement

    More than two years after Brazilian authorities launched their investigation into Petrobras, the consequences of the scandal continue to grow, stretching beyond the borders of Brazil and potentially encompassing other state-owned or operated entities.  In a recent webinar, attorneys from Mayer Brown and its Brazilian affiliate, Tauil & Chequer Advogados, describe the latest developments, including a Peruvian investigation into construction companies allegedly involved in the Petrobras scandal and what they say may be a potential U.S. “sweep” of companies with ties to state-owned entities, illustrated by an investigation of the Venezuelan state-owned oil company.  They also offered advice on how companies can avoid the fallout from these investigations.  See “Operation Car Wash: Examining the History and Consequences of the Petrobras Scandal,” The FCPA Report, Vol. 4, No. 6 (Mar. 18, 2015); and “Experts on Brazilian Law Explain the Latest Fallout from the Petrobras Scandal,” The FCPA Report, Vol. 4, No. 11 (May 27, 2015).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    The SEC’s Kara Brockmeyer Answers Hot-Button Enforcement Questions

    Are DOJ and SEC enforcement efforts taking different paths?  Will the SEC, like the DOJ, be issuing formal guidance emphasizing a focus on individuals?  Does the SEC plan to continue relying heavily on administrative proceedings?  During a recent panel at the Securities Enforcement Forum, Kara Brockmeyer, Chief of the SEC’s FCPA Unit of the Division of Enforcement, addressed these and other hot topics.  See also “FCPA Corporate Settlements of 2014: Details, Trends and Compliance Takeaways,” The FCPA Report, Vol. 4, No. 2 (Jan. 21, 2015).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    DOJ Compliance Counsel Hui Chen Is on the Job and Looking for Key Aspects of Strong Compliance Programs

    On November 3, 2015, Hui Chen began work at her new job as compliance counsel to the Fraud Section of the DOJ’s Criminal Division.  Since the DOJ announced the creation of the role in July, there has been no shortage of speculation about the meaning of the new position for FCPA enforcement.  Along with the announcement of Chen’s start, the DOJ has tried to answer that speculation with some guidance, offering further information on what the role will entail and outlining its key expectations for a strong compliance program.  See “DOJ’s New FCPA Compliance Counsel: A Fairer Assessment for Companies,” The FCPA Report, Vol. 4, No. 16 (Aug. 5, 2015).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    U.S. Attorneys’ Manual Changes Announced by Yates Push Companies to Provide More Information About Individuals

    Calling it a “big step forward” for the DOJ, Deputy Attorney General Sally Quillian Yates announced changes to the U.S. Attorneys’ Manual (USAM) on November 16, 2015 at the American Banking Association and American Bar Association Money Laundering Enforcement Conference in Washington, D.C.  “We don’t revise the USAM that often and, when we do, it’s for something important.”  The revised sections formalize the September 2015 Yates Memo by emphasizing the “primacy in any corporate case of holding individual wrongdoers accountable” including a change in cooperation credit.  See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two),” The FCPA Report, Vol. 4, No. 19 (Sep. 23, 2015); Part Two, Vol. 4, No. 20 (Oct. 7, 2015).

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  • From Vol. 4 No.23 (Nov. 4, 2015)

    Former DOJ Prosecutors Weigh In on Self-Reporting, Individual Prosecutions, International Cooperation and Enforcement Tactics

    Two former FCPA prosecutors who have moved to the other side of the table recently offered their candid views from the trenches of FCPA enforcement.  They discussed hot topics including whether the DOJ is targeting foreign companies, how international cooperation affects enforcement and how effective the government really is at evaluating compliance programs.  The former prosecutors also opined on the voluntary disclosure calculus, whether the Yates memo will increase individual prosecutions, how companies should “follow the money” to strengthen internal controls, and more.  The panelists, Nathaniel Edmonds, now a partner at Paul Hastings, and Stephen Spiegelhalter, now a principal in the Fraud Investigations & Dispute Services practice at EY, spoke during a panel at the recent SCCE Compliance and Ethics Institute in Las Vegas.

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  • From Vol. 4 No.21 (Oct. 21, 2015)

    A Defense Lawyer, a Prosecutor and a Witness Discuss Cooperating with the Government

    Anti-corruption officials have been emphasizing their use of traditional law enforcement methods – wiretaps, undercover agents, confidential informants – to pursue FCPA matters.  Individuals questioned by the government about participation in a bribery scheme should think about cooperation while companies must be aware that some employees may be cooperators.  The recent Yates memo also may mean that companies will be more actively providing information about individuals to the government.  In another installment of our candid conversation with parties who sat on all sides of the table during an FCPA case, we explore the government’s investigation process, from the company’s initial self-report through the settlement, through the prism of that case and the larger enforcement trends.  Then-head prosecutor, Billy Jacobson, now a partner at Orrick; the defendant, Richard Bistrong, who now operates anti-corruption consulting company Front-Line Anti-Bribery; and Bistrong’s attorney Brady Toensing, a partner at diGenova & Toensing, share their insights.  See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two),” The FCPA Report, Vol. 4, No. 19 (Sep. 23, 2015); Part Two, Vol. 4, No. 20 (Oct. 7, 2015).

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  • From Vol. 4 No.20 (Oct. 7, 2015)

    How Will the Yates Memo Change DOJ Enforcement? (Part Two of Two)

    Last month, Deputy Attorney General Sally Quillian Yates issued a memo to all United States Attorneys outlining “six key steps” designed to strengthen the DOJ’s “pursuit of individual corporate wrongdoing.”  The FCPA Report spoke to three former DOJ attorneys about how the Yates Memo may affect companies and their compliance programs.  The first article in this two-part series assessed how much of a policy shift the Yates Memo truly represents and how it may affect a target’s decision to cooperate with the government.  This second article focuses on two other major issues raised by the Memo: (1) the directive to gather information about individual culpability earlier and (2) a possible increase in the number of civil actions brought against individuals.  It also discusses whether companies should reconsider their internal investigation procedures. See also “FCPA Enforcement Officials and Defense Bar Debate FCPA Policy,” The FCPA Report, Vol. 4, No. 12 (Jun. 10, 2015).

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  • From Vol. 4 No.19 (Sep. 23, 2015)

    How Will the Yates Memo Change DOJ Enforcement? (Part One of Two)

    Under pressure to hold individuals accountable, the DOJ says it will be intensifying its focus on individuals by taking six key steps during investigations.  Deputy Attorney General Sally Quillian Yates issued a memo to all U.S. Attorneys outlining the steps she says will strengthen the DOJ’s pursuit of corporate wrongdoing.  Former DOJ attorneys talked to The FCPA Report about the implications of what the DOJ is characterizing as a policy shift.  The first article in this two-part series discusses the extent to which the memo may change the enforcement climate and the cooperation calculus for companies and individuals.  The second part addresses how focusing on individuals earlier in the investigations and the increased coordination of efforts between the DOJ’s civil and criminal divisions may affect internal investigations.  See “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 4 No.17 (Aug. 19, 2015)

    James Tillen of Miller & Chevalier Talks 2015 Enforcement Trends and Predictions

    The first half of 2015 is behind us, providing an opportunity to reflect on new trends in anti-corruption enforcement and what companies can expect going forward.  A number of FCPA actions have made the news this year, but identifying trends and making predictions requires a more careful look at the numbers.  As part of its FCPA Summer Review 2015, Miller & Chevalier has analyzed enforcement data and identified several trends in the first half of 2015, including a noticeable increase in the number of declinations by the DOJ.  The FCPA Report spoke with James Tillen, a member of M&C and vice chair of the firm’s international department, about these trends, how companies should use them to improve their compliance programs and their negotiating strategies with the government and his predictions for the second half of 2015.  See also “Government Officials and Defense Bar Offer Insights on FCPA Enforcement, Voluntary Disclosure and Cooperation,” The FCPA Report, Vol. 4, No. 14 (Jul. 8, 2015).

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  • From Vol. 4 No.17 (Aug. 19, 2015)

    Mayer Brown Attorneys Discuss Global Corruption Risk in the Financial Services Industry

    Financial services firms – including banks, financial advisors and private equity investors – have recently been the subjects of an increasing number of anti-corruption enforcement actions.  Will the enforcement agencies remain focused on the financial services industry, or is it just a passing phenomenon?  During a recent event hosted by Mayer Brown, a panel of experts discussed whether financial services firms are actually facing additional exposure and provided strategies for limiting that exposure.  The panel included three Mayer Brown partners: Alistair Graham of the firm’s London office, John Hickin, based in Hong Kong, and Laurence Urgenson, based in D.C.  See also “Five Corruption Risks in the Financial Services Industry,” The FCPA Report, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    DOJ’s New FCPA Compliance Counsel: A Fairer Assessment for Companies

    For companies in the unenviable position of waiting to see whether federal prosecutors will criminally charge their company – an often existential question – the Department of Justice may have just leveled the playing field, at least slightly.  It has just announced that it will hire a new in-house compliance counsel who will take an active role in determining key aspects of FCPA resolutions.  In a guest article, G. Derek Andreson and Thomas M. Buchanan, partners at Winston & Strawn, and Francesca M.S. Guerrero, an associate, explain how the position came to be, how it will affect companies with varying types of anti-corruption compliance programs and how companies can take advantage of the new program.  See also “Comparing and Contrasting Three FCPA Experts’ Advice on Negotiating FCPA Settlements,” The FCPA Report, Vol. 3, No. 17 (Aug. 20, 2014).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    Four Compliance Lessons from Lesser-Known FCPA Cases

    In today’s active FCPA enforcement environment, the compliance bar is always rising.  Although most compliance specialists are familiar with the details of the headline-grabbing cases such as PetroTiger and FLIR, smaller, less-publicized cases can also provide valuable insight on how best to avoid FCPA liability.  In a recent webinar hosted by the Society of Corporate Compliance and Ethics, Bill Currier, a partner at White & Case, and Sulaksh Shah, a partner in PwC’s forensic service practice, discussed how companies can use the SEC and DOJ’s enforcement activity in recent, lower-profile corruption cases to tailor their compliance programs to the unique needs, risks and structures of their businesses or industries.  See also “Best Practices for Reviewing Anti-Corruption Compliance Programs: Government Expectations, Scheduling and Staffing (Part One of Three),” The FCPA Report, Vol. 2, No. 16 (Aug. 7, 2013); “Challenges, Preparation and Risk Evaluation (Part Two of Three),” Vol. 2, No. 17 (Aug. 21, 2013); and “Implementation, Remediation and Documents (Part Three of Three),” Vol. 2, No. 18 (Sep. 11, 2013).

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  • From Vol. 4 No.15 (Jul. 22, 2015)

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

    The Middle East lures businesses and investors with eye-popping wealth, rich natural resources and an almost insatiable appetite for growth.  But the region presents a panoply of challenges for those wishing to do business there without running afoul of both American and local anti-corruption laws.  A prevalence of state-owned entities and business-minded royal families; laws requiring third-party facilitators in transactions; and a culture that embraces gift-giving are only some of the corruption risks in the region.  These challenges were recently addressed at a Strafford Publications panel featuring 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.  This article series covers some of the insights from the panelists.  This first article addresses the diverse cultural and legal factors that a company needs to be aware of when doing business in the region.  The second article will focus on three specific areas of corruption risk and strategies for mitigating those risks.  See also “Corruption and the Arab Spring: Compliance Implications for International Companies,” The FCPA Report, Vol. 1, No. 4 (Jul. 25, 2012).

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  • From Vol. 4 No.14 (Jul. 8, 2015)

    Government Officials and Defense Bar Offer Insights on FCPA Enforcement, Voluntary Disclosure and Cooperation

    Companies should anticipate that the government will continue to reward self-reporting and cooperation, and that the SEC will routinely seek disgorgement, even when a company self-discloses, enforcement officials said at the Securities Enforcement Forum West 2015.  Along with members of the FCPA defense bar, they discussed the trajectory of FCPA enforcement and offered advice on how companies can receive the most cooperation credit possible.  See also “FCPA Enforcement Officials and Defense Bar Debate FCPA Policy,” The FCPA Report, Vol. 4, No. 12 (Jun. 10, 2015).

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  • From Vol. 4 No.13 (Jun. 24, 2015)

    FCPA Enforcement Officials and Defense Bar Advise on Anti-Corruption Compliance Policies

    What does the government really expect from a compliance program?  When will a company get cooperation credit?  These were among the questions tackled by FCPA experts in the private and public sectors during a recent program hosted by Practising Law Institute.  The panelists included Kara N. Brockmeyer, chief of the SEC’s FCPA Unit of the Division of Enforcement and Matthew S. Queler, an assistant chief in the Fraud Section of the DOJ’s Criminal Division.  Sharing the perspective of the defense bar were Kimberly A. Parker, a partner at WilmerHale; Jeffrey D. Clark, a partner at Willkie Farr & Gallagher and former Assistant U.S. Attorney in the District of New Jersey; and Mark F. Mendelsohn, a partner at Paul, Weiss, and former deputy chief of the Fraud Section of the DOJ’s Criminal Division.  A companion article, published in our last issue, contained the panelists’ discussion on hot topics such as international coordination of anti-corruption cases, a rising bar for cooperation credit and the availability of declinations.

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  • From Vol. 4 No.12 (Jun. 10, 2015)

    FCPA Enforcement Officials and Defense Bar Debate FCPA Policy

    FCPA enforcement officials answered hard questions from the defense bar on hot topics including international coordination of anti-corruption cases, a rising bar for cooperation credit and the availability of declinations during a recent program hosted by Practising Law Institute.  The panelists included Kara N. Brockmeyer, Chief of the SEC’s FCPA Unit of the Division of Enforcement; Matthew S. Queler, an Assistant Chief in the Fraud Section of the DOJ’s Criminal Division; and several prominent defense attorneys.  A companion article, which will be published in our next issue, will contain the panelists’ advice on forming effective compliance programs.  See also “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec.3, 2014).

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  • From Vol. 4 No.11 (May 27, 2015)

    Prosecutors and Defense Lawyers Discuss FCPA Risk Areas, Government Expectations and the Length of Investigations

    At ACI’s 9th Advanced Forum on FCPA and Anti-Corruption for the Life Sciences Industry, FCPA experts opined on enforcement for the second half of 2015 and the speed of government investigations, and warned that third parties and mergers and acquisitions still pose major risks.  The panel was moderated by Bret Campbell, a partner at Cadwalader, Wickersham & Taft, and included Daniel Kahn, assistant chief of the DOJ’s FCPA Unit and Timothy Peterson, a partner at Murphy & McGonigle and previously senior counsel in the SEC’s Division of Enforcement.  See also “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.9 (Apr. 29, 2015)

    Top FCPA Officials Discuss Government Tactics and Lessons from Enforcement Actions

    At this year’s Momentum ACES Compliance Summit, high-ranking FCPA officials from the DOJ and SEC confirmed that active FCPA enforcement is continuing, and advised companies to read the public statements they release.  Tracy Price, Assistant Director of the SEC’s FCPA Unit, and Leo Tsao, Assistant Chief of the DOJ’s FCPA Unit also discussed cooperation, self-reporting and interagency collaboration. 

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  • From Vol. 4 No.6 (Mar. 18, 2015)

    Ceresney, Focusing on Pharma, Discusses SEC Enforcement Priorities and Compliance Expectations

    Andrew Ceresney, the SEC’s Director of Enforcement, recently reaffirmed the SEC’s emphasis on cooperation and self-reporting and highlighted three pharmaceutical company practices that have led to FCPA enforcement actions.  Speaking at CBI’s Pharmaceutical Compliance Congress in Washington, D.C., Ceresney, like others before him, emphasized the benefits of self-reporting.  See also “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.4 (Feb. 18, 2015)

    Private Equity FCPA Enforcement: High Risk or Hype?

    Extraction, engineering, pharmaceuticals and medical device manufacturers — FCPA prosecutors have already swept through these industries. Are private equity firms next?  In a guest article, Laurence A. Urgenson, Joseph De Simone, Audrey L. Harris, Matthew A. Rossi, Matthew Alexander and Melanie M. Burke, attorneys at Mayer Brown LLP, assert that, using Dodd-Frank and the SEC’s new presence exams, the government may very well turn its attention towards the private equity industry.  They detail the enforcement landscape, the bribery risks for private equity firms (among other things: hiring practices, sovereign wealth funds, acquisitions and joint ventures) and best practices to mitigate those risks.  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. 4 No.4 (Feb. 18, 2015)

    Identifying and Addressing FCPA Exposure for Lenders

    FCPA risk for lenders may not be as intuitive as it is in other industries, but lenders are subject to FCPA scrutiny, Bridget Marsh, Deputy General Counsel of the Loan Syndications and Trading Association (LSTA) and Jeanine P. McGuinness, counsel at Davis Polk & Wardwell, said at a recent presentation sponsored by the LSTA.  Marsh and McGuinness considered the specific corruption risks lenders face and offered tips on how lenders may mitigate that risk through borrower due diligence and contractual provisions.  See also “International Corruption Risks Facing Financial Institutions,” The FCPA Report, Vol. 1, No. 4 (Jul. 25, 2012).

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  • From Vol. 4 No.2 (Jan. 21, 2015)

    Preparing for the Increasing Role of Whistleblowers in FCPA Enforcement

    The growth in the Dodd-Frank Whistleblower Program, as revealed in the 2014 Whistleblower Report, has a diverse group of stakeholders – companies, whistleblowers, counsel, the SEC and Congress – clamoring for answers about the scope and application of the Dodd-Frank whistleblower provisions.  In a guest article, David M. Stuart and Omar K. Madhany, partner and associate, respectively, at Cravath, Swaine & Moore LLP, analyze the provisions and how they have been enforced and interpreted.  They also discuss how companies can encourage internal reporting and the importance of ensuring that employee agreements are in compliance with the whistleblower provisions.  See also “Seven Lessons from FCPA Enforcement Trends from FCPA Experts in the Public and Private Sector (Part One of Two),” The FCPA Report, Vol. 3, No. 8 (Apr. 16, 2014).

     

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  • From Vol. 4 No.2 (Jan. 21, 2015)

    FCPA Corporate Settlements of 2014: Details, Trends and Compliance Takeaways

    FCPA enforcement remained strong in 2014 with the DOJ and the SEC resolving cases with 10 companies for a total of $1.6 billion, the highest enforcement take since 2010.  However, the majority of the funds, approximately 72%, came from two major enforcement actions ($772 million from Alstom and $384 million from Alcoa).  The cases reveal that the government continues to pursue companies in a variety of industries from a mix of nations.  The settling companies range from a technology company, to a firearm manufacturer, to a cosmetics manufacturer and hail from France, America and Japan.  We summarize the salient points of each settlement and distill lessons from these enforcement actions.  See “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.25 (Dec. 17, 2014)

    Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In

    Selling your company’s business side on compliance; the key indicators of a successful compliance program; and the government’s view of M&A risks were all on the agenda of the FCPA enforcement officials' annual fireside chat with the FCPA defense community.  SEC Chief Kara Brockmeyer (FCPA Unit, Enforcement Division), and DOJ Deputy Chief Patrick Stokes (Fraud Section of Criminal Division) were both on hand for the “year in review” discussion at American Conference Institute’s recent International Conference on the Foreign Corrupt Practices Act.  The FCPA Report discussed the regulators’ presentation with prominent defense practitioners, who provided a few caveats to the regulators’ pronouncements.  In our previous issue, we covered Stokes’ and Brockmeyer’s discussion of enforcement priorities and the defense bar’s reaction.  Our coverage of last year’s “year in review” panel can be found here and here.

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  • From Vol. 3 No.25 (Dec. 17, 2014)

    Key Compliance Takeaways from the OECD Foreign Bribery Report

    For the first time, the Organisation for Economic Co-operation and Development has studied the entirety of the bribery cases (427 of them) brought by its 41 signatories over the past 15 years.  Calling the results of its Foreign Bribery Report a “new weapon in the global push to fight corruption,” the OECD says its Report seeks to “enable governments, companies and civil society to better understand and combat this insidious crime.”  Among other things, the Report found more bribery than many expected in wealthy countries and a drop in cases over the past two years.  FCPA experts Steven Michaels, counsel at Debevoise & Plimpton and Juan Morillo, a partner at Quinn Emanuel, talked to The FCPA Report about how compliance officers can use these findings.  See our previous coverage of the Report, “OECD Launches ‘New Weapon’ in Global Push to Fight Corruption,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014).

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  • From Vol. 3 No.24 (Dec. 3, 2014)

    Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds

    At what has become a traditional annual speech summarizing the year in FCPA developments, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, beat the government self-reporting drum, warned about increasing international anti-corruption enforcement and cautioned companies to re-evaluate confidentiality agreements they use during internal investigations.  The FCPA Report talked to prominent FCPA practitioners to get their take on this year’s speech at American Conference Institute's International Conference on the Foreign Corrupt Practices Act.  They said the significance of the speech lay in the tone and topics emphasized.  See our coverage of last year’s speech here and here.

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  • From Vol. 3 No.24 (Dec. 3, 2014)

    Caldwell and Ceresney Push Companies on FCPA Compliance, Cooperation and Self-Reporting

    Reinforcing familiar messages, senior government officials at the SEC and DOJ said the FCPA continues to be a priority and self-reporting and cooperation count a lot towards the mitigation of penalties.  Speaking at American Conference Institute’s recent International Conference on the Foreign Corrupt Practices Act, Assistant Attorney General Leslie R. Caldwell and the Director of the SEC Division of Enforcement Andrew Ceresney described the government’s focus going forward in each of their keynote speeches, including focusing on prosecuting individuals; the strengthening of the Kleptocracy Initiative; and increasing international cooperation.  The FCPA Report synthesizes their speeches here and also in this issue presents private practitioners’ takeaways from the government's "Year in Review" presentation at the conference.  See also “In Final Speech as Criminal Division Head, Mythili Raman Emphasizes DOJ’s Focus on Anti-Corruption Efforts, Highlighting Individual Convictions and Foreign Cooperation,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.24 (Dec. 3, 2014)

    OECD Launches “New Weapon” in Global Push to Fight Corruption

    The Organisation for Economic Cooperation and Development has released its first Report analyzing corruption cases of signatories of its Anti-Bribery Convention.  "For the first time, this Report measures and describes transnational corruption with reference to actual cases, rather than with statistics derived from econometrics, perception surveys or unsubstantiated allegations,” the OECD said.  Findings from the 427 cases dating from 1999 included: most bribes are of foreign public officials from wealthier countries; most are made through intermediaries; and most are paid by large companies with knowledge of senior management.  The OECD called the detailed Report a powerful tool to understand and combat corruption.  The release of the Report was accompanied by a panel discussion at OECD Headquarters.  

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  • From Vol. 3 No.23 (Nov. 19, 2014)

    Finding Synergies in OFAC and FCPA Compliance

    Given the increasing enforcement of various regulations that affect companies operating globally, creating efficiencies in compliance programs, and getting buy-in from management, is crucial for compliance officers.  At a recent event hosted by The FCPA Report and Alston & Bird, experts discussed two pressing regulatory areas: the FCPA and trade sanctions.  We compile the insight given by panel members Jim Finnerty, Senior Vice President and Associate Deputy Global Anti-Money Laundering Officer-United States of TD Bank; Edward Kang and Jason Waite, partners at Alston & Bird; and Justin Shur, a partner at MoloLamken.  See also “FCPA and OFAC Compliance Essentials,” The FCPA Report, Vol. 3, No. 20 (Oct. 8, 2014). 

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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.18 (Sep. 10, 2014)

    Mitigating Bribery Risks Using Financial Controls, Risk Assessments and Leveraging Internal Resources

    A recent program presented by The Knowledge Group brought together experts from investigative and consulting firm Kroll, law firm Alston & Bird and defense company Leidos to discuss best practices in mitigating FCPA risk.  The panelists analyzed the current enforcement climate and shared how they have structured and implemented systems at their companies for financial controls, risk assessments and the vetting of third parties, including how they leverage existing resources to enhance their compliance programs.  They also highlighted compliance lessons from recent Kroll global fraud surveys.  See also “Kroll Managing Director Extracts Practical Lessons from 2013 Anti-Bribery and Corruption Benchmarking Survey,” The FCPA Report, Vol. 2, No. 13 (Jun. 26, 2013).

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  • From Vol. 3 No.14 (Jul. 9, 2014)

    Davis Polk FCPA Experts Assess Global Anti-Corruption Trends (Part Two of Two)

    The first half of 2014 brought significant anti-corruption enforcement developments in the U.S. and abroad.  In a recent webinar, attorneys from Davis Polk & Wardwell examined the trends that are shaping the global enforcement landscape and how companies can use them to improve their compliance programs.  In this, part two of the article series covering the webinar, Davis Polk attorneys discuss international cooperation in anti-bribery investigations and changes in the FCPA enforcement climate, including the increasing use of administrative proceedings by the SEC.  In part one, they compared and contrasted three recent FCPA resolutions and discussed the enforcement climate in Asia and other parts of the world.  See also “Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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  • From Vol. 3 No.13 (Jun. 25, 2014)

    Davis Polk FCPA Experts Assess Global Anti-Corruption Trends (Part One of Two)

    Midway through 2014, what is the state of global anti-corruption enforcement and what does it mean for multi-national companies?  In a recent webinar, attorneys from Davis Polk & Wardwell examined the trends that are shaping the enforcement and compliance landscape.  In part one of this article series, Davis Polk attorneys compare and contrast three recent FCPA resolutions and discuss the enforcement climate in Asia and other parts of the world and the accompanying compliance implications.  In part two, they discuss international cooperation in anti-bribery investigations and changes in the FCPA enforcement climate, including the increasing use of administrative proceedings by the SEC.  See “Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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  • From Vol. 3 No.12 (Jun. 11, 2014)

    Doing Business in India: Avoiding Corruption Risks and Monitoring Compliance Programs

    India presents companies not only with tremendous business opportunities but also an entrenched culture of corruption at virtually every government “touchpoint.”  Strafford Publications recently hosted a panel discussion highlighting some of the unique challenges facing companies trying to navigate India’s notorious bureaucracy.  The discussion examined FCPA cases with Indian connections as well as the anti-corruption enforcement climate in India and offered guidance on third-party due diligence and on monitoring the effectiveness of an anti-corruption compliance program.  The panel featured Jay Holtmeier, a partner at Wilmer Hale; Elizabeth D. Keating, Global Compliance Counsel – Investigations of Johnson Controls, Inc.; and Michael Stavridis, a partner at Ernst & Young.  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.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. 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.10 (May 14, 2014)

    Global Enforcement Developments Evaluated by FCPA Experts

    What are the FCPA and global anti-corruption trends that companies should be focusing on as they review and enhance their compliance programs?  A recent panel at the Dow Jones Symposium, moderated by Rachel Ensign from the Wall Street Journal and featuring Martin T. Biegelman, an executive vice president at IPSA International, Michael J. Hershman, president and CEO of The Fairfax Group and Paul E. Pelletier, a member at Mintz Levin, highlighted some of the important developments.  See also “Assessing the Year in FCPA Enforcement and Looking Ahead,” The FCPA Report, Vol. 3, No. 2 (Jan. 22, 2014).

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  • From Vol. 3 No.10 (May 14, 2014)

    Global Enforcement Developments Evaluated by FCPA Experts

    What are the FCPA and global anti-corruption trends that companies should be focusing on as they review and enhance their compliance programs?  A recent panel at the Dow Jones Global Compliance Symposium, moderated by Rachel Ensign from the Wall Street Journal and featuring Martin T. Biegelman, an Executive Vice President at IPSA International; Michael J. Hershman, President and CEO of The Fairfax Group; and Paul E. Pelletier, a member of Mintz Levin, highlighted some of the important developments.  See also “Assessing the Year in FCPA Enforcement and Looking Ahead,” The FCPA Report, Vol. 3, No. 2 (Jan. 22, 2014).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    FCPA Experts in the Public and Private Sector Share Seven Lessons from Recent Cases (Part Two of Two)

    At a recent panel discussion sponsored by the Knowledge Group, former senior FCPA prosecutors, a current SEC lawyer and an economist shared advice on various critical aspects of an internal anti-corruption investigation, including factors to consider at the outset, whether to voluntarily disclose the investigation to the government, how to handle reporting to multiple jurisdictions, and calculating the “benefit of the bribe” for penalty purposes.  The first article in this two-part series contained the seven lessons the panelists extracted from recent FCPA settlements and trends; the initial decisions that a company faces when it discovers a potential violation; and the role of whistleblowers in revealing potential violations. See also “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    Deputy Attorney General James Cole Discusses the Hallmarks of Successful Compliance Programs and Individual Prosecutions

    The FCPA is now in the “DNA of the Department,” Deputy Attorney General James Cole said at the recent Dow Jones Global Compliance conference. Noting the explosion in cases over the past five years, Cole addressed several related issues, including how the DOJ evaluates corporate compliance programs and its increased focus on individual prosecutions.  See also “DOJ FCPA Unit’s John Buretta and Shearman & Sterling’s Dan Newcomb Offer Public and Private Perspectives on Key FCPA Challenges,” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013).

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  • From Vol. 3 No.8 (Apr. 16, 2014)

    FCPA Experts in the Public and Private Sector Share Seven Lessons from Recent Cases (Part One of Two)

    At a recent panel discussion sponsored by the Knowledge Group, former FCPA prosecutors, a current SEC lawyer and an economist shared their insights on what recent FCPA enforcement actions mean for companies, along with advice for initiating and conducting FCPA investigations.  This article, the first of a two-part series, contains seven lessons the panelists have extracted from recent FCPA settlements and trends; initial decisions that a company faces when it discovers a potential violation; and the role of whistleblowers in revealing potential violations.  The second part of the series will cover the panelists’ insights on initiating internal investigations; voluntary disclosures; multi-jurisdictional concerns; negotiations with regulators; remediation efforts and calculation of fines.  See also “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.8 (Apr. 16, 2014)

    Seven Lessons from FCPA Enforcement Trends from FCPA Experts in the Public and Private Sector (Part One of Two)

    At a recent panel discussion sponsored by the Knowledge Group, former FCPA prosecutors, a current SEC lawyer and an economist shared their insights on what recent FCPA enforcement actions mean for companies, along with advice for initiating and conducting FCPA investigations. This article, the first of a two-part series, contains seven lessons the panelists have extracted from recent FCPA settlements and trends; initial decisions that a company faces when it discovers a potential violation; and the role of whistleblowers in revealing potential violations. The second part of the series will cover the panelists’ insights on initiating internal investigations; voluntary disclosures; multi-jurisdictional concerns; negotiations with regulators; remediation efforts and calculation of fines. See also “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.8 (Apr. 16, 2014)

    Former Special Inspector General for Iraq Reconstruction Discusses Middle East Anti-Corruption Compliance Strategies

    “Oversight under fire” is how Stuart Bowen, who served as Special Inspector General for Iraq Reconstruction from January 2004 through October 2013 and currently serves as a Senior Advisor at the Center for Strategic and International Studies, described his team’s role in discovering and fighting corruption in Iraq during and after the war.  In his remarks to the Momentum Global Anti-Corruption Congress in Washington, D.C. in March, he discussed the lessons learned from those successes and provided advice to American companies looking to do business in the region.  Bowen also emphasized the need for reform in how the U.S. manages its stabilization and reconstruction efforts in areas of military conflict.

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics

    At this year’s Momentum Global Anti-Corruption Congress, Charles Cain, Deputy Chief of the SEC’s FCPA Unit and Jeffrey H. Knox, Chief of the Fraud Section of the DOJ, Criminal Division, lifted the veil on the government’s thinking in FCPA investigations.  The discussion, led by David H. Resnicoff, a member at Miller & Chevalier, covered a range of topics on the minds of FCPA practitioners and compliance officers, including the timing of voluntary self-disclosures, the kinds of cases the government may decline to pursue, effective cooperation with FCPA investigations, the role of audit committees in compliance strategies and the programmatic success of the FCPA Guidance released in 2012.  See “When Should a Company Voluntarily Disclose an FCPA Investigation?,” The FCPA Report, Vol. 3, No. 4 (Feb. 19, 2014); and “DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    In Final Speech as Criminal Division Head, Mythili Raman Emphasizes DOJ’s Focus on Anti-Corruption Efforts, Highlighting Individual Convictions and Foreign Cooperation

    On her last day at the DOJ, Mythili Raman, former Acting Assistant Attorney General for the Criminal Division, speaking before Momentum Group’s Global Anti-Corruption Congress, emphasized the prominence of anti-corruption efforts in the Department's agenda.  She highlighted recent efforts to hold individual wrongdoers to account by expanding prosecutions and convictions of individuals as well as efforts to work cooperatively with foreign counterparts and multilateral organizations.  See “Compliance Lessons from Total S.A.’s $398 Million FCPA Settlement: Foreign Cooperation, Compliance Monitors, Broad Jurisdiction and the Effect of Reluctant Cooperation with the DOJ and SEC,” The FCPA Report, Vol. 2, No. 12 (Jun. 12, 2013).

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  • From Vol. 3 No.6 (Mar. 19, 2014)

    Corruption Risks and Compliance Programs in the Oil & Gas Industry: An Interview with Samuel Cooper of Paul Hastings LLP

    Oil and gas was one of the first industries the DOJ and SEC seized on when they began to focus on the FCPA a decade ago.  The corruption risk profile of oil and gas companies remains high, but recent enforcement actions that appear to be the last breaths in a few wide-ranging and longstanding investigations (such as Panalpina and Oil-for-Food) have led to speculation that the government’s attention may be focused elsewhere.  Paul Hastings’ Samuel Cooper, a partner based in the firm’s Houston office, shared his insights with The FCPA Report about corruption risk and FCPA compliance in the oil and gas industry, discussing, among other things, the dynamics of the traditionally high-risk profile of oil and gas companies, the effect on the industry of the early enforcement actions, what’s next for the sector, as well as advice for oil and gas companies (and others) for strengthening their compliance programs.  See also “Compliance Lessons from Total S.A.’s $398 Million FCPA Settlement: Foreign Cooperation, Compliance Monitors, Broad Jurisdiction and the Effect of Reluctant Cooperation with the DOJ and SEC,” The FCPA Report, Vol. 2, No. 12 (Jun. 12, 2013).

    Read Full Article …
  • From Vol. 3 No.6 (Mar. 19, 2014)

    Eye-Opening Report Helps Companies Tackle European Corruption Risks  

    "Breathtaking” is how one European Commissioner characterized the corruption described in the European Commission’s February 2014 Anti-Corruption Report, which details each E.U. Member State’s efforts in fighting corruption and provides advice for improving the effectiveness of those efforts.  In a guest article, Antonio Suarez-Martinez and James Maton, partners in Edwards Wildman Palmer LLP’s London office, analyze the Report and the relevant takeaways for companies doing business in Member States.  For more insight from Edwards Wildman, see “Collateral Consequences of Bribery: When Can Ethical Competitors Initiate Suit in the U.S. and U.K.?,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013).

    Read Full Article …
  • From Vol. 3 No.4 (Feb. 19, 2014)

    A Synthesis of Top Firms’ FCPA 2013 Year in Review Insights

    It is crucial for compliance professionals to be up-to-date on the latest trends and patterns in FCPA enforcement. However, a simple review of the 2013 enforcement actions may provide more questions than answers. What does the apparent decrease in FCPA prosecutions mean for businesses operating abroad? How seriously should companies take the increase in FCPA penalties? What is the significance of the SEC's first FCPA non-prosecution agreement? The FCPA Report has gathered insight from several of the year-end reports authored by the nation's top FCPA practice groups, including Shearman & Sterling, WilmerHale, Gibson Dunn, Mayer Brown, BakerHostetler and Debevoise & Plimpton, and distilled those ideas and observations into a succinct outline of the 2013 enforcement trends and patterns. See also "Assessing the Year in FCPA Enforcement and Looking Ahead," The FCPA Report, Vol. 3, No. 2 (Jan. 22, 2014). 

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  • From Vol. 3 No.4 (Feb. 19, 2014)

    Corruption Risk and the Changing Legal Climate in Latin America

    Although Latin American countries offer a tremendous wealth of business opportunities, the region is a potential minefield of corruption risks, perilous to navigate.  A recent webinar hosted by Strafford Publications discussed the dynamic enforcement climate, risks endemic to the region, an overview of recent and pending changes in local anti-corruption laws (including the newly-enacted law in Brazil) and provided advice on how to optimize compliance programs for the region.  The program featured Jay Holtmeier, a partner at WilmerHale; Matteson Ellis, Special Counsel at Miller & Chevalier; and Matthew J. Feeley, a Shareholder in Buchanan Ingersoll & Rooney.  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.4 (Feb. 19, 2014)

    Six Things Every Business Lawyer Needs to Know About the FCPA

    Whether you’re in-house counsel or a transactional lawyer at a law firm, anti-corruption is something that should very much be on your radar – the government is aggressive, the fines can be astronomical and people do go to jail.  That was the message from William H. Devaney, partner at Venable and moderator of the American Bar Association’s recent webinar, “What Every Business Lawyer Should Know About the FCPA.”  The panel discussion provided business lawyers with information and advice about staying compliant in this anti-corruption enforcement climate.  The panelists were Lynn A. Neils, a partner at Covington & Burling; Carlos Ortiz, a partner at Edwards Wildman; Brian T. Sumner, in-house counsel at Alcoa; and Douglas Tween, a partner at Baker McKenzie.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2. No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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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)

    A Perspective from the FCPA Defense Bar on Brockmeyer and Duross’ “Year In Review”: Interview with Danforth Newcomb, of Shearman & Sterling

    Companies operating internationally should pay close attention when government regulators candidly discuss the FCPA.  But how should a company interpret the government’s comments?  How much weight should be given to any individual regulator’s predictions of trends?  At ACI’s recent International Conference on the Foreign Corrupt Practices Act in Washington, D.C., Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided insight into the specific elements of FCPA enforcement that matter to leading regulators, as detailed in The FCPA Report’s two-part series.  See Part One of Two, Vol. 2, No. 24 (Dec. 4, 2013); Part Two of Two, Vol. 2, No. 25 (Dec. 18, 2012).  In an interview with The FCPA Report following that panel, Danforth Newcomb, a partner at Shearman & Sterling LLP and recognized expert on the FCPA, responded to the most pressing issues raised by Duross and Brockmeyer.  Newcomb’s no-nonsense approach to FCPA compliance and thoughtful dissection of the regulators’ comments enable in-house counsel, compliance officers and others to translate the regulators’ insights directly into actionable policies and procedures.

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  • From Vol. 2 No.25 (Dec. 18, 2013)

    FCPA Corporate Settlements of 2013: Details, Trends and Compliance Takeaways

    FCPA enforcement got off to a slow start in 2013, with no official corporate FCPA settlements announced until the beginning of the second quarter.  Experts dove into the vacuum, speculating about whether the lack of settlements signaled a downturn in the government’s commitment to enforcement.  As the year progressed, however, enforcement picked up.  While the statistics were slightly down from 2012, as of press time, the DOJ and SEC had reached nine settlement agreements with corporations, including multiple DPAs and the SEC’s first-ever NPA.  The government assessed over $650 million in fines, disgorgement and penalties from the settling companies, with company settlements ranging from $1 million to a staggering $398 million.  This article discusses four compelling enforcement trends and summarizes the settlements and their compliance takeaways.  See also “Seven Key Trends That Are Changing the FCPA Enforcement and Compliance Landscape,” The FCPA Report, Vol. 2, No. 14 (Jul. 10. 2013).

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  • From Vol. 2 No.25 (Dec. 18, 2013)

    Charles Duross and Kara Brockmeyer Discuss What Matters to Regulators When Negotiating FCPA Settlements (Part Two of Two)

    What are FCPA regulators and prosecutors looking for during company presentations?  How can a company shorten the time from its first meeting with the government to the resolution of its FCPA issues?  Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided detailed insight at a recent ACI International Conference in Washington, D.C. on what regulators are looking for, discussing the government’s FCPA charging philosophies, investigative techniques and enforcement priorities, and dispensing advice about how companies can avoid or decrease FCPA penalties.  Among other things, the regulators highlighted the government’s continued focus on problematic travel and entertainment, warned that the DOJ and SEC will pursue matters involving charitable donations and commercial bribery, and provided tips for expediting government investigations and conducting effective settlement negotiations.  The first part of this article series contained insight from Duross and Brockmeyer about five micro trends within the overarching trend of increased FCPA enforcement: prosecution of individuals, SEC administrative proceedings focused on FCPA violations, increasing coordination between global regulators on anti-corruption matters, the persistence of use of corporate monitors following FCPA settlements and the continued FCPA risk posed by use of third parties.  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.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.24 (Dec. 4, 2013)

    Charles Duross and Kara Brockmeyer Discuss Five FCPA Enforcement Trends That Matter to Regulators: Individual Prosecutions, Administrative Proceedings, Global Coordination, Corporate Monitors and Third Parties (Part One of Two)

    At ACI’s International Conference on the Foreign Corrupt Practices Act in Washington D.C., Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided candid and detailed insight into elements of FCPA enforcement that matter to leading regulators.  They discussed the government’s charging philosophies, investigative techniques and enforcement priorities, and dispensed advice about how companies can avoid or decrease FCPA penalties.  This article summarizes the most noteworthy insights shared by Duross and Brockmeyer, and discusses the practical implications of the regulators’ points.  See also “Five Lessons from 2013 FCPA Enforcement: Transaction Monitoring, International Cooperation, Documenting Hiring Decisions, Risk Assessments and Individual Prosecutions,” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013).

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  • From Vol. 2 No.24 (Dec. 4, 2013)

    Four Ways the SEC Enforcement Landscape Is Changing and Why They Matter to FCPA Practitioners

    The judiciary and others have recently attacked the SEC’s longstanding “neither admit nor deny” policy, which allows defendants to settle without admitting any of the allegations leveled against them, and new SEC Chairwoman Mary Jo White has announced plans to end that policy in selected egregious cases.  How much will this change affect companies?  In the $13 billion settlement reached between JP Morgan and the SEC on November 19, 2013 over the sale of mortgage-backed securities, for example, the government recited agreed-upon facts, but some have called that weak tea, characterizing the facts as vague, and saying companies should have to make it clear why they are paying a fine.  Others say forcing defendants to admit allegations will squeeze the SEC’s resources, limiting it to bringing fewer enforcement actions as companies refuse to settle and go to trial.  The admissions policy change comes alongside a few other notable trends, including the increased use of administrative enforcement actions, a greater focus on cooperation tools and a greater judicial scrutiny of settlement agreements – for the “neither admit nor deny” provision and other settlement provisions, such as the fine and the reporting requirements.  During a recent webinar hosted by the Berkeley Research Group, Paul Hastings LLP and The FCPA Report, H. David Kotz, Managing Director at BRG, and Thomas Zaccaro, partner at Paul Hastings, discussed the development of these four trends and the implications for companies and individuals.  Rebecca Hughes Parker, Editor-in-Chief of The FCPA Report, moderated the event.

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  • From Vol. 2 No.23 (Nov. 20, 2013)

    The Changing Dynamics of Anti-Corruption Enforcement in Brazil

    The spotlight is shining brightly on Brazilian corruption: One of Brazil’s highest-profile companies, Embraer, is being investigated by both Brazilian and American authorities in connection with alleged bribes paid to officials in the Dominican Republic and Argentina in exchange for business.  This joint investigation, the Brazilian aspect of which was uncovered by Reuters and the Wall Street Journal earlier this month, coincides with the passage and enactment of the Brazilian Anti-Corruption Act of 2013.  Recently, Robert Di Cillo, a partner at Di Cillo Advogados in Sao Paolo, and Thad McBride, a partner at Sheppard Mullin in Washington, D.C., discussed the details of the new law and its potential ramifications at a webinar sponsored by the Practising Law Institute.  See also “How the New Brazilian Corruption Law Impacts U.S. Corporations,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).

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  • From Vol. 2 No.22 (Nov. 6, 2013)

    Five Lessons from 2013 FCPA Enforcement: Transaction Monitoring, International Cooperation, Documenting Hiring Decisions, Risk Assessments and Individual Prosecutions

    It has been a busy year for FCPA enforcement – the government has prosecuted individuals for violating the FCPA, used aggressive criminal investigation techniques to build cases and continued to increase its cooperation with foreign governments.  In a recent webinar hosted by The Network, Tom Fox shared his insight into recent FCPA trends and provided tips for FCPA compliance arising from those trends.  See also “Seven Key Trends That Are Changing the FCPA Enforcement and Compliance Landscape,” The FCPA Report, Vol. 2, No. 14 (Jul. 10. 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.22 (Nov. 6, 2013)

    The FCPA Report, Berkeley Research Group and Paul Hastings to Present Webinar on the Impact of Recent Initiatives on SEC Enforcement

    On Tuesday, November 19, 2013, The FCPA Report’s Editor-in-Chief, Rebecca Hughes Parker, will moderate a complimentary panel discussion about how recent SEC initiatives are changing the landscape of SEC enforcement and what these changes mean for companies.  Thomas A. Zaccaro, a partner at Paul Hastings LLP, and H. David Kotz, Director at Berkeley Research Group and former Inspector General of the SEC, will join Rebecca to cover topics including the SEC’s new admit/deny policy and its implications; increased judicial scrutiny of agreements and the impact on settlement negotiations with the SEC; the SEC’s increased focus on cooperation agreements, including a discussion of the SEC’s first ever non-prosecution agreement for FCPA violations; and the SEC’s use of administrative proceedings as opposed to civil actions in court, as exemplified by the recent action brought against SAC Capital.  The webinar will take place at 12:00 pm EDT.  To register for the event, please e-mail your contact information to Mary Carlin at mcarlin@fcpareport.com, with the subject The FCPA Report: Webinar.

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    Why the Direct Access Partners Case Matters for Financial Sector Anti-Corruption Compliance

    With the filing of criminal and civil charges against employees of New York-based broker dealer Direct Access Partners, the government has opened a new chapter of FCPA enforcement in the finance sector.  The labyrinthine scheme alleged by the government and the financial company’s rapid disintegration following the revelation of the charges serve as a stark reminder to the financial services industry of the importance of periodically assessing the effectiveness and appropriateness of anti-bribery compliance programs.  In a guest post, Sean Hecker, Andrew M. Levine and Steven S. Michaels of Debevoise & Plimpton LLP discuss the most recent developments in the case, summarize the government’s charges against the lower level defendants Clarke and Hurtado and identify some of the unique risks faced by financial services firms stemming from the complex transactions in which they deal and the multiplicity of government entities with mandates that can encompass anti-bribery compliance.  See also “FCPA Charges against Broker-Dealer Stemming From Routine SEC Examination Is ‘Wake-Up Call’ to the Financial Services Industry,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013). 

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    K&L Gates Panel Reviews Anti-Corruption Enforcement in the U.S., the U.K., China, Australia, Latin America, Africa, Southeast Asia and Russia

    With the spate of new anti-corruption laws around the globe, and the evolution of laws already on the books, “it is critical for a company to have on-the-ground information and local support” in structuring an effective anti-bribery and anti-corruption (ABAC) program and responding to regulatory action in all of the regions in which it operates.  So said Dick Thornburgh, former Attorney General of the United States and former Governor of Pennsylvania, introducing a recent webinar presented by K&L Gates LLP, where Thornburgh is now of counsel.  The K&L Gates speakers who followed Thornburgh shared their direct local experiences and examined the state of the ABAC laws in their regions of speciality.

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    How the New Brazilian Anti-Corruption Law Impacts U.S. Corporations

    Brazil is the world’s seventh largest economy, with a GDP of over $2 trillion.  The country is considered an emerging global market, has a large domestic consumer market and is attractive to foreign direct investments.  Alongside this enormous growth, however, is the problem of corruption.  A large body of regulation governs the interaction between the public and private sectors in Brazil.  As a result, doing business in regulated sectors means that business will fall within a complex regulatory regime marked by uncertainty and burdensome bureaucratic requirements.  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).  Brazil has now responded to global demands that it play a more active role in combating corruption on a domestic level – as well as the demands of the Brazilian public who have protested the lack of anti-corruption laws – with the enactment of a groundbreaking anti-corruption law that is aimed at changing the business culture in Brazil.  In a guest article, Adriana Dantas and Luiz Eduardo Alcântara, attorneys at Barbosa, Müssnich & Aragão in São Paulo, Brazil, present an overview of the Brazilian Anti-Corruption Law and explore the potential impact on U.S. companies doing business in Brazil.  See also “The Essentials of the New Brazilian Anti-Corruption Legislation,” The FCPA Report, Vol. 2, No. 17 (Aug. 21, 2013).

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  • From Vol. 2 No.19 (Sep. 26, 2013)

    Transparency International Report Finds That Poor Legislative Oversight of Defense Spending Increases Corruption Risk

    Legislative bodies in most countries have “seriously insufficient controls” that lead to “high or critical corruption risk.”  That is one of the findings of the Defence and Security Programme of Transparency International UK in its inaugural report on worldwide legislative oversight of defense expenditures.  The September 2013 report provides insight into how a country’s political structures and processes affect corruption risk in that country’s defense industry, providing valuable information for companies that do business in these countries.  This article highlights TI-UK’s key findings.

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  • From Vol. 2 No.16 (Aug. 7, 2013)

    Seven Lessons from China’s Bribery Investigation of GlaxoSmithKline 

    The Chinese government’s recent actions against employees of pharmaceutical giant GlaxoSmithKline plc in connection with possible commercial and government bribery have thrust the business practices of pharmaceutical and other health-related companies in China into the spotlight.  Speculation is growing that China may be increasing enforcement of its anti-bribery laws against a range of industries.  Chinese anti-bribery enforcement varies in important ways from U.S. enforcement.  Therefore, it is important for companies operating in China to understand what steps they can take to mitigate corruption risk, uncover and react to bribery by their employees and others, and be prepared for unannounced visits from Chinese regulators.  In a recent webinar, Shanghai-based K&L Gates partner Amy Sommers offered seven compliance and business lessons that companies can learn from GSK’s predicament.  See also “China Clarifies and Expands its Anti-Bribery Laws,” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.16 (Aug. 7, 2013)

    How Can Financial Services Firms and Employees Avoid FCPA Liability?

    The financial services industry has come under increasing scrutiny by the government in various areas, including anti-corruption.  See “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).  In May, for example, the DOJ and SEC brought charges against individuals at a broker-dealer alleging that the individuals paid bribes in connection with sales of financial services.  See “FCPA Charges against Broker-Dealer Stemming From Routine SEC Examination Is ‘Wake-Up Call’ to the Financial Services Industry,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013).  Given this 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?  What are the chief risk factors and the most effective precautions?  During a recent program hosted by Strafford Publications, Inc., Lara Covington, special counsel at Schulte Roth & Zabel LLP, addressed these and other questions.

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  • From Vol. 2 No.15 (Jul. 24, 2013)

    U.K. Practitioners Discuss the Prospect of Enforcement Actions Under the U.K. Bribery Act, Advantages of Deferred Prosecution Agreements and Proposed Sentencing Guidelines

    What was all the fuss about?  The U.K. Bribery Act was adopted in 2010 and took effect in 2011.  Since then, there have been no prosecutions of corporations under the Act and only two formal investigations are known to be underway.  Experienced U.K. practitioners warn that the “fuss” may be proven justified soon, however, and companies should not be complacent.  In a recent webinar, experts cautioned that “enforcement is coming.”  They also discussed the availability of DPAs under the Bribery Act, the continuing utility of civil recovery orders and the proposed sentencing guidelines issued with respect to the Bribery Act.  This article summarizes the key lessons from the webinar.  See also Strategies for Implementing the U.K. Bribery Act’s Requirement of Adequate Procedures for Intermediaries,” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.14 (Jul. 10, 2013)

    Seven Key Trends That Are Changing the FCPA Enforcement and Compliance Landscape

    What does the DOJ’s emphasis on individual prosecutions mean for corporate legal departments?  F. Joseph Warin, partner at Gibson Dunn LLP, answered that and other questions as he distilled seven important FCPA trends in a recent presentation during the Momentum Global Anti-Corruption Congress.  Drawing on his extensive experience in the field, Warin extracted lessons from the trends applicable to in-house counsel, outside counsel and other practitioners.  In addition, he discussed the relevance of increasing cooperation between regulators and prosecutors around the globe.  For additional insight from Warin, see “Five Themes for General Counsel to Monitor with Respect to Dodd-Frank Whistleblowers and the FCPA,” The FCPA Report, Vol. 1, No. 9 (Oct. 3, 2012); and “Lanny Breuer, William Jacobson and F. Joseph Warin Discuss FCPA Guidance at ACI’s 28th National Conference on the FCPA,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    OECD Working Group’s 2013 Report on Global Anti-Bribery Efforts Shows Lackluster Performance

    The OECD’s Working Group on Bribery recently released its Annual Report on Activities Undertaken in 2013.  It is clear from the Report that, while many nations have taken steps to implement the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention), and a few countries (such as the U.S.) have active enforcement regimes, most have not actively enforced the anti-bribery laws that they adopted pursuant to the Anti-Bribery Convention.  This article summarizes the key takeaways from the Report.  See also “Transparency International Reports ‘Inadequate’ Worldwide Enforcement of OECD Anti-Bribery Convention,” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012).

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    Acting Assistant Attorney General Raman Highlights DOJ Commitment to FCPA Enforcement

    At Momentum’s recent Global Anti-Corruption Congress in Washington, D.C., Acting Assistant Attorney General Mythili Raman reinforced the DOJ’s emphasis on the FCPA, its enforcement successes and the growth of international cooperation in fighting corruption.  Raman took over in March of this year as head of the Criminal Division, replacing Lanny Breuer.

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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)

    Lessons from the Latest Anti-Corruption Developments in the U.K., Brazil and China

    A single-minded focus on the FCPA with a passing nod to other countries’ regulatory regimes is not enough to make a company’s compliance program first-in-class today; multinational companies must fully address an array of global anti-bribery laws in an environment of growing global enforcement and increased prosecutorial vigor.  Regulatory regimes in other countries may not be consistent with existing company compliance programs.  In a recent webinar, partners from Hogan Lovells shared their insight and experience on navigating the latest global developments in anti-bribery and corruption regulation and enforcement.  This article conveys the highlights from the discussion, focusing primarily on the anti-corruption regimes in China, the U.K. and Brazil.

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    SEC’s FCPA Unit Chief and Top Practitioners Address the Role of Financial Controls in FCPA Compliance Policies, Internal Investigations, Self-Reporting and Related Topics

    In a recent panel discussion held at the New York City Bar, Kara Brockmeyer, Chief of the SEC’s FCPA Unit, and Mark Schonfeld, a partner at Gibson Dunn & Crutcher LLP, discussed the SEC’s role in civil FCPA enforcement from a private and public perspective.  The panel was moderated by Wayne Carlin, a partner at Wachtell, Lipton, Rosen & Katz.  The three experts shared useful insights regarding managing the costs of FCPA investigations, creating strong compliance programs, negotiating with the SEC and deciding whether to voluntarily disclose a violation to the government.

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  • From Vol. 2 No.5 (Mar. 6, 2013)

    Knowing Your Partners: Three Steps to Reduce FCPA Risk from Third Party Intermediaries

    The failure to pre-screen and monitor third party intermediaries (TPI) are the root causes of many recent FCPA investigations.  Thus, devising and implementing a consistent process for TPI due diligence and auditing, as well as understanding regulatory differences across the globe, are “must do” items for companies operating overseas.  Marc Miller, a partner in the New York forensic and risk consulting practice of KPMG LLP, recently shared his advice on identifying and mitigating risks involving TPIs in a webinar sponsored by compliance software developer Aravo Solutions, Inc. entitled “The Increasing Business Risk of FCPA Failures.”  Miller suggested that companies focus on three steps when it comes to third parties, each of which is described in detail in this article.  Miller also discussed his view on recent enforcement trends, informed by the Guidance.

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Combating Bribery North of the 49th: A Wake-Up Call for Companies Doing Business in Canada

    Legislatures around the world have passed laws prohibiting bribery of foreign public officials.  The FCPA has received significant public attention due to a number of high-profile prosecutions.  However, the Canadian equivalent to the FCPA – the Corruption of Foreign Public Officials Act (CFPOA) – historically has not been a significant concern for businesses with a connection to Canada.  But this is changing.  In the face of mounting international pressure, Canadian authorities have sent the message that they will enforce Canadian anti-corruption laws and pursue significant penalties against companies that have provided bribes to government officials.  In a guest article, Mark Morrison and Michael Dixon, partner and associate, respectively, at Blake, Cassels & Graydon LLP, outline the substantive elements of the CFPOA with a view to comparing and contrasting Canada’s foreign anti-corruption scheme with the FCPA, and comment on Canadian enforcement trends, which have escalated in recent times, and which the authors expect will continue to increase.

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    In Possible Sign of Escalation of Canadian Anti-Bribery Enforcement, Griffiths Energy Agrees to Pay $10.35 Million to Resolve CFPOA Charges

    In line with many predictions about the imminent increase in what has been historically weak Canadian anti-bribery enforcement, Calgary-based Griffiths Energy International Inc. has pled guilty to violating the Corruption of Foreign Public Officials Act, Canada’s analogue to the FCPA.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Recent Developments in U.K. Bribery Act Enforcement: SFO Head Green Speaks, Abbot Group Settles and Rolls-Royce Reveals Bribery Investigation

    There is growing concern that the U.K. Bribery Act 2010 (Bribery Act), which took effect in July 2011, may pose more serious risks for multinational businesses than the FCPA.  This is due, in part, to the fact that the Bribery Act extends to private as well as government bribery and does not have an exception for “facilitating payments.”  On November 13, 2012, David Green CB QC, who is the Director of the U.K.’s Serious Frauds Office (SFO), gave testimony before the Justice Committee of the House of Commons.  His testimony provides insight into how, under his direction, the SFO may be expected to approach anti-corruption efforts in general, and enforcement of the Bribery Act in particular, especially with regard to self-reporting and deferred prosecution agreements.  In other recent U.K. developments, Scotland’s Crown Office and Procurator Fiscal Service announced its first-ever civil settlement.  The government reached an agreement with Abbot Group Limited arising out of overseas corrupt payments, and Rolls-Royce plc announced that it had reported to the SFO information with respect to bribery and corruption involving overseas intermediaries.  This article highlights the key take-aways of Green’s testimony that are relevant to anti-bribery enforcement and summarizes the Abbot and Rolls-Royce matters.  For more on the mechanics of the Bribery Act, see “Finding Clarity in the New U.K. Bribery Act,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012).

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Top Government Officials Discuss FCPA Enforcement Actions Initiated During 2012 and Their Significance

    On November 16, 2012, at ACI’s 28th Annual FCPA Conference, top regulators from the DOJ and SEC discussed FCPA enforcement developments in a lively panel called the “2012 FCPA Overview.”  The panelists discussed, among other things, the “message” from recent cases, including the much-touted Morgan Stanley case and the “rogue employee” defense; the benefits of self-reporting; the increased capacity of the government to detect misconduct; and whether requirements for financial reporting are expanding.  The 2012 overview panel was moderated by Lucinda A. Low, a partner at Steptoe & Johnson, LLP, and head of its FCPA practice.  It featured the SEC’s Kara Novaco Brockmeyer and the DOJ’s Charles Duross.  Brockmeyer has been Chief of the SEC’s FCPA Unit since September 2011.  Prior to that, she served as Assistant Director of its Enforcement Division and in other capacities since 2000.  Duross is Deputy Chief of the Fraud Section in the DOJ’s Criminal Division and is in charge of all of the DOJ’s FCPA cases.  He previously served as an Assistant U.S. Attorney.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    ABA Panel Focuses on Trends in SEC Enforcement of the FCPA and Strategies for Negotiating Civil FCPA Settlements

    The SEC’s focus on the FCPA has remained sharp, and recent changes to its policies and new enforcement tools require defense lawyers to rethink their strategies for dealing with the agency.  On October 18, 2012, a group of distinguished attorneys discussed these issues at the ABA’s Fifth Annual National Institute on the FCPA in Washington, D.C.  The panel was moderated by Cheryl Scarboro, now a partner at Simpson Thacher & Bartlett LLP after a 19-year tenure at the SEC, most recently as the first Chief of the FCPA Unit in the Division of Enforcement.  The participants discussed the latest changes to the SEC’s “neither admit nor deny” policy; the viability of tack-on civil litigation; return of disgorged profits to victims or victim countries; negotiation of the disgorgement figure with the SEC; and the SEC’s use of non-prosecution agreements and deferred prosecution agreements.  This article provides highlights from the panel discussion, with particular emphasis on strategies useful to companies and counsel in responding to the SEC during investigations and in negotiating with the agency in settlement proceedings.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    Litigation, Settlement and Risk Management Lessons Learned from Recent FCPA Trials

    FCPA trials present specific obstacles, and as the recent “SHOT Show” case demonstrates, can be difficult for the government to win.  On October 18, 2012, as part of the Fifth Annual ABA FCPA Institute in Washington, D.C., a panel of litigators and current and former prosecutors discussed recent FCPA trials and lessons learned from them.  The lively panel disagreed over issues such as the uniqueness of FCPA trials, and whether juries really care about bribery.  U.S. Attorney Neil MacBride also provided insight into trial work in the Eastern District of Virginia, home of the “Rocket Docket,” where some FCPA cases have been brought recently.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    Kroll Survey Identifies Global Fraud Trends and Risks in Europe, the Middle East and Africa

    Kroll Advisory Solutions (Kroll) recently released its sixth annual “Global Fraud Report,” analyzing the results of an in-depth survey on fraud and corruption worldwide conducted in July and August 2012.  To complete its research, Kroll’s Economist Intelligence Unit polled more than 830 senior executives in a broad range of industries, with over half the participants holding C-level positions at companies with annual revenues exceeding $500 million.  This article discusses Kroll’s key survey findings and recommendations then details Kroll’s regional analyses for Europe, the Middle East and Africa.

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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.9 (Oct. 3, 2012)

    Anti-Corruption Compliance in the Age of Global Enforcement

    A global wave of anti-corruption regulation has been steadily gaining momentum since it began in the 1990s.  International organizations, such as the Organisation for Economic Co-operation and Development, have set their sights on fighting bribery and have successfully pressured member states to pass tighter laws.  Cross-border enforcement cooperation is also on the rise.  This heightened scrutiny has highlighted the importance for corporations to have globally effective anti-corruption compliance programs.  Successful programs help reduce the risk of violations and may also engender a more favorable regulatory response when issues arise.  In a guest article, Richard Sibery, the Leader for Fraud and Investigations with Ernst & Young LLP’s Fraud Investigation & Dispute Services (FIDS) practice, and Virginia Adams, a Senior Manager in E&Y’s FIDS practice, discuss the three basic building blocks of a best-of-breed compliance program.  For additional insight from Sibery, 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); and “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,” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    Transparency International Reports “Inadequate” Worldwide Enforcement of OECD Anti-Bribery Convention

    Transparency International (TI) has released its eighth annual Progress Report on enforcement of The Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was adopted in 1997.  TI found that, while some signatories are increasing their enforcement efforts, the “overall level of enforcement remains inadequate.”  This article summarizes the findings of the Progress Report and highlights its conclusions.

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    Chief of the DOJ’s Criminal Division Defends the Use of Deferred Prosecution Agreements in FCPA Enforcement Actions

    In a recent speech, Lanny Breuer, Chief of the DOJ’s Criminal Division (responsible for criminal enforcement of the FCPA) argued that deferred prosecution agreements, increasingly common in his department’s FCPA enforcement actions, have resulted in “far greater accountability for corporate wrongdoing – and a sea change in corporate compliance efforts.”

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  • From Vol. 1 No.7 (Sep. 5, 2012)

    Fines, Victims, the Three Buckets of FCPA Costs and FCPA Reform: An Interview with Mike Koehler, the FCPA Professor (Part Two of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law, author of the popular blog the FCPA Professor and outspoken critic of the current FCPA enforcement regime.  This article includes the second part of our interview with Professor Koehler.  In this part, Professor Koehler addresses recent Supreme Court precedent affecting corporate fines; the potential for fines to be paid to victims instead of the U.S. Treasury; the cost-benefit analysis of FCPA compliance and the three buckets of FCPA costs; his distinction between license/permit cases and government procurement cases and its importance for compliance policies and procedures; and the prospect of FCPA reform, a topic on which Professor Koehler disagrees with Judge Sporkin.  For the first part of our interview with Professor Koehler, see “Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two),” The FCPA Report, Vol. 1, No. 6 (Aug. 22, 2012).

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  • From Vol. 1 No.7 (Sep. 5, 2012)

    Grant Thornton Webinar Highlights FCPA and U.K. Bribery Act Enforcement Trends (Part One 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 first part, focuses on enforcement trends, and the second part will focus on compliance.  The participants in the panel were Sterl Greenhalgh and Bill Olsen of international accounting and auditing firm Grant Thornton UK and Grant Thornton US LLP, respectively, and Vivian Robinson of law firm McGuire Woods UK.  Greenhalgh is Grant Thornton UK’s head of anti-bribery and corruption.  Olsen, Grant Thornton’s U.S. leader of Anti-Corruption services and Global Investigations, authored “The Anti-Corruption Handbook.”  Robinson was previously General Counsel to the U.K.’s Serious Fraud Office, which has primary responsibility for enforcing the Bribery Act.  Robinson led the development of the SFO’s enforcement policy under the Bribery Act.

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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.4 (Jul. 25, 2012)

    Corruption and the Arab Spring: Compliance Implications for International Companies

    To paraphrase Mao, a revolution, not being a dinner party, is a messy and unpredictable affair with winners and losers emerging in chaotic and sometimes haphazard fashion.  For international investors and businesses, the prospects are rarely bright, at least in the near term.  Foreign commercial interests were notable losers in some of the last century’s most important revolutions.  During the Russian Revolution, foreign investors lost their wallets; in Cuba, Americans lost their sugar and their casinos; and after the Islamic revolution in Iran, international oil companies lost their wells.  The recent wave of Arab Spring upheavals that continues to ripple across the southern and eastern shores of the Mediterranean may present the threats common to foreign businesses caught in the midst of revolution, including extortion, nationalization, expropriation, and physical violence against executives and employees.  These modern revolutions also pose new challenges to international firms, as evidence or allegations that they engaged in corrupt behavior may be made public through documents in a ransacked government ministry building, or through an incarcerated former official, an enterprising journalist or prosecutor in the new regime, or a whistleblower within the foreign company itself.  If such allegations come to the attention of U.S. authorities or other governments, the company could face severe criminal and civil penalties for violations of the FCPA, the U.K. Bribery Act, and similar anti-corruption laws, in addition to significant business ramifications.  In a guest article, Peter B. Clark and Bradley J. Bondi, both partners at Cadwalader Wickersham & Taft LLP, and James A. Treanor, an associate at Cadwalader, provide a comprehensive discussion of the corruption risks companies face in the Middle East, North Africa and elsewhere in the world; summarize noteworthy FCPA enforcement actions involving the Middle East and North Africa; and detail strategies companies can employ to protect themselves from the Arab Spring fallout.

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  • From Vol. 1 No.4 (Jul. 25, 2012)

    An Interview with Judge Stanley Sporkin, the “Father of the FCPA” (Part Two of Two)

    This article includes the second part of The FCPA Report’s extensive interview with the esteemed Judge Stanley Sporkin, who is widely credited with developing the books and records provision of the FCPA when he was Director of the Division of Enforcement of the SEC in the 1970s.  Judge Sporkin was also a federal judge in the District of Columbia and General Counsel of the CIA, and is currently the Ombudsman for BP America.  The second part of our interview includes Judge Sporkin’s comments on: self-reporting; the new FCPA Unit at the SEC; his proposal for amnesty; the biggest mistake companies make when it comes to corruption; the movement to amend the FCPA; the potential importance of ombudsmen; and combining anti-corruption audits with annual audits.  In the first part of the interview, Judge Sporkin offered insight into, among other things: the origins of the FCPA following the Watergate hearings; his contemporaneous view on the difficulty of substantiating anti-bribery claims; the origins of internal investigations; and the pro-business orientation of the FCPA.  See An Interview with Judge Stanley Sporkin, the ‘Father of the FCPA’ (Part One of Two),” The FCPA Report, Vol. 1, No. 3 (Jul. 11, 2012).

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  • From Vol. 1 No.4 (Jul. 25, 2012)

    International Corruption Risks Facing Financial Institutions

    For many years, financial institutions had not been frequent targets of FCPA enforcement.  However, the past two years have revealed that regulators have not forgotten about this industry.  The financial crisis increased regulatory scrutiny both from an investigative and a legislative perspective.  The SEC and DOJ are investigating financial institutions for violations of securities laws, the FCPA, anti-money laundering rules, and similar regulations.  As discussed in this article, and as the various reviews by regulators reveal, banks, private equity firms, and other financial institutions face several avenues of potential liability due to the nature of their overseas business under a myriad of domestic and international statutes.  To properly navigate this complex regulatory framework requires an effective and regularly updated compliance program, consistent with the recommended government standards (and perhaps building off of their current anti-money laundering procedures), and any responses to regulatory requests demand a carefully structured internal review.  In a guest article, Palmina Fava and Alan Brudner, both partners at Paul Hastings LLP, and Mor Wetzler, an associate at Paul Hastings, discuss: the regulatory focus on financial firms; guidance for anti-corruption compliance derived from anti-money laundering initiatives; the potential for anti-corruption liability without actual knowledge of the relevant corruption; the strict liability provisions of the U.K. Bribery Act; common sources of liability for financial institutions; specific compliance considerations raised by dealings with sovereign wealth funds and state-owned enterprises; and the risk of required offset funds.

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  • From Vol. 1 No.4 (Jul. 25, 2012)

    Hughes Hubbard Analyzes Trends and Extracts Lessons from Recent FCPA Enforcement

    International law firm Hughes Hubbard recently released a comprehensive and insightful FCPA/Anti-Bribery Alert.  Hughes Hubbard surveyed and summarized dozens of FCPA and anti-bribery enforcement actions, settlements and regulatory actions.  This article summarizes Hughes Hubbard’s overview of anti-corruption enforcement trends and the firm’s perspectives on the practical lessons to be learned from recent FCPA enforcement efforts.

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  • From Vol. 1 No.3 (Jul. 11, 2012)

    An Interview with Judge Stanley Sporkin, the “Father of the FCPA” (Part One of Two)

    The FCPA Report recently had the privilege of conducting a wide-ranging interview with the esteemed Judge Stanley Sporkin, who is widely credited with developing the books and records provision of the FCPA in the 1970s.  Judge Sporkin, a former federal judge in the District of Columbia, was Director of the Division of Enforcement of the SEC from 1974 to 1981, and General Counsel to the Central Intelligence Agency from 1981 to 1986.  He now advises private companies on compliance and is the Ombudsman for BP America.  Judge Sporkin was a driving force behind the creation of the FCPA, and this interview is perhaps the deepest conducted to date with a person whose depth on the topic cannot be surpassed.  In light of the length of our interview, we are publishing the transcript in two parts.  In this first part, Judge Sporkin offers valuable insight into, among other things: the origins of the FCPA following the Watergate hearings; his contemporaneous view on the difficulty of substantiating anti-bribery claims; the origins of internal investigations; the pro-business orientation of the FCPA; and more.  The second part will include Judge Sporkin’s comments on: self-reporting; the new FCPA Unit at the SEC; his proposal for amnesty (or a “flu shot,” as he calls it); the biggest mistake companies make when it comes to corruption; the movement to amend the FCPA; the potential importance of ombudsmen; and combining anti-corruption audits with annual audits.

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