The Anti-Corruption Report

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

Articles By Topic

By Topic: Jurisdiction

  • From Vol. 7 No.19 (Sep. 19, 2018)

    Hoskins and Ho Decisions Clarify the Jurisdictional Reach of the FCPA

    Because most FCPA cases brought to resolution are settled, the court’s role is usually limited to, at most, approving a settlement. As a result, the case law interpreting the FCPA is very thin. But in recent months, two courts issued decisions about the jurisdictional scope of the FCPA. In a guest article, Mara Senn discusses the implications of both the Hoskins and Ho cases. See “The History and Reach of dd-3 Jurisdiction and Lessons for Companies Investigating Potential Violations” (Apr. 18, 2018).

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  • 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. 6 No.24 (Dec. 13, 2017)

    Former High-Level Chinese and Senegalese Officials Charged With Bribing Foreign Leaders in Chad and Uganda

    The U.S. government has laid out lengthy allegations against a former high-level Chinese official who is the executive of a Chinese energy company’s NGO and his “fixer,” a former Senegalese foreign minister, relating to bribes in Chad and Uganda. The schemes allegedly involved charitable “donations” and U.N. connections to secure business opportunities for a Chinese energy company. Sources told The Anti-Corruption Report that the case shows a continuing focus on individual liability, and is notable for the fact that the SDNY worked with the DOJ to bring the case. See “Significant Sentences May Signal Continuing Commitment to Individual FCPA Enforcement” (Sep. 20, 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.9 (May 10, 2017)

    Preparing for the Sometimes Surprising Impact of Multilateral Development Banks

    Multilateral development banks (MDBs) finance development projects around the world and companies involved in those projects often are not aware of their connection to MDBs – and the potential consequences. As Glenn Ware, PwC principal and global intelligence leader, told The FCPA Report, understanding exposure to MDBs is crucial because those banks have audit rights, and can debar a company not only for corruption, but other violations as well. He explained how that debarment can have spiraling consequences, including DOJ and SEC investigations and credit downgrades, and gave advice for mitigating the risk of debarment. See also “The World Bank’s Wide Reach and Its Growing Anti-Corruption Program” (May 28, 2014).

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  • From Vol. 5 No.18 (Sep. 14, 2016)

    Five Ways a Company Can Leverage Its Anti-Bribery Compliance Program to Facilitate Sanctions Compliance

    While often treated separately by companies, anti-bribery and sanctions compliance risks frequently intersect. Companies can ensure effective compliance with both types of regulations more efficiently, effectively and economically by combining certain knowledge and resources to jointly address these areas. In a guest article, Baker & McKenzie partner Ryan Fayhee and his associates Geoff Martin and Alexandre Lamy review how the jurisdictional reach and risks presented by anti-bribery and sanctions regulations tend to converge and suggest concrete ways that companies can leverage their anti-bribery compliance programs to facilitate sanctions compliance. Fayhee will also be sharing his thoughts on the topic at the upcoming SCCE Compliance and Ethics Institute in Chicago. See “Finding Synergies in OFAC and FCPA Compliance” (Nov. 19, 2014). 

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  • From Vol. 5 No.6 (Mar. 23, 2016)

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

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

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  • From Vol. 4 No.19 (Sep. 23, 2015)

    For Now, Hoskins Sets a Limit on the FCPA’s Jurisdictional Reach

    A recent decision in a high-profile FCPA case in the District of Connecticut, U.S. v. Hoskins, has clarified that the reach of the FCPA is not as unlimited as the DOJ contends.  As Arnold & Porter attorneys Mara V.J. Senn and Brandie Weddle explain in a guest article, the Hoskins court has created a road map that delineates the limits of the government’s FCPA jurisdiction.  They discuss the potential repercussions of the decision for FCPA enforcement.  See also “One U.S. District Court in New York Affirms Broad Jurisdictional and Temporal Reach of the FCPA While Another Dismisses FCPA Case for Lack of Contacts,” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013).

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  • From Vol. 4 No.7 (Apr. 1, 2015)

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

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

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  • From Vol. 4 No.1 (Jan. 7, 2015)

    Recordbreaking Alstom Criminal FCPA Settlement Results from Wide-Ranging Bribery Scheme and Lack of Cooperation

    The Department of Justice ended 2014 with its largest criminal FCPA enforcement action yet.  On December 22, 2014, Alstom S.A., a French engineering, power and transportation company, agreed to pay $772 million to resolve charges relating to widespread bribery involving tens of millions of dollars paid to foreign officials across the globe.  The bribery schemes included travel for foreign officials, bribes disguised as charitable payments and funds funneled to foreign officials via third parties.  The case brings up questions of jurisdiction, the consequences of failing to cooperate, as well as successor liability, given Alstom’s pending sale to General Electric.  The intersection of U.S. and French law may also have affected the terms of this settlement.  With insight from Edward Kang, a partner at Alston & Bird, The FCPA Report analyzes the salient facts and terms of the resolution, and draws compliance takeaways.  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).

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  • From Vol. 3 No.23 (Nov. 19, 2014)

    FCPA Liability Does Not Reach Successor When Target’s Misconduct Was Beyond FCPA’s Jurisdiction, DOJ Affirms, Outlining M&A Best Practices

    The SEC/DOJ FCPA Guidance says that an acquisition does not create liability where none existed before.  In its second Opinion Procedure Release of 2014, the DOJ reaffirms the limits of FCPA liability, announcing that it would not take enforcement action against a U.S. acquiring company based on its foreign target’s pre-acquisition conduct, which was not subject to the FCPA’s jurisdiction before the acquisition.  The company explained its pre-acquisition diligence and its post-acquisition plan to bring the target in compliance.  The release comes at a time when the DOJ and SEC are facing judicial scrutiny of their interpretation of the jurisdiction of the FCPA.  See “Hoskins Provides an Opportunity for Judicial Determination of the FCPA’s Jurisdiction,” The FCPA Report, Vol. 3, No. 20 (Oct. 8, 2014); “How Broad Is the FCPA’s Reach Over the Acts of Foreign Nationals?,” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).

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  • From Vol. 3 No.20 (Oct. 8, 2014)

    Hoskins Provides an Opportunity for Judicial Determination of the FCPA’s Jurisdiction

    According to the DOJ and SEC, the FCPA gives the government authority to regulate the extraterritorial behavior of foreign entities and nationals who have never stepped foot inside the United States.  In a guest post, Mara V.J. Senn and Brandie Weddle of Arnold & Porter LLP argue that, until now, the DOJ and SEC have been unchecked in the exercise of such authority over foreign entities and individuals.  However, one British national, Lawrence Hoskins, has asked the U.S. District Court for the District of Connecticut to rein in the DOJ and dismiss an indictment against him for actions he alleges occurred completely outside U.S. territory.  Senn and Weddle detail the arguments and potential ramifications of this case.  See also “How Broad Is the FCPA’s Reach Over the Acts of Foreign Nationals?,” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).

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  • From Vol. 3 No.19 (Sep. 24, 2014)

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

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

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  • From Vol. 3 No.9 (Apr. 30, 2014)

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

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

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    The Long Arm of U.S. Law: What the Proposed Amendments to Federal Criminal Rule 4 Mean for International Companies

    Prosecutors may soon move one step closer to receiving broad new powers to serve criminal summonses on international companies that lack domestic agents or offices – a development with significant implications for international criminal enforcement, including anti-corruption enforcement.  In a guest article, Mara V.J. Senn and Whitney Moore, partner and associate, respectively, at Arnold & Porter LLP, describe the recommended changes to Federal Criminal Rule 4, which governs proper service of arrest warrants and criminal summonses, and the potential impact of those changes.  For more from Senn, see “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); and “Developing and Implementing the Investigation Plan (Part Two of Two),” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Weak FCPA Compliance Program and Lack of Cooperation Cited in Marubeni’s $88 Million Guilty Plea

    Resolving its second FCPA enforcement action in just over two years, Japanese-based Marubeni has pled guilty to charges related to payments it made, in concert with its consortium partner French power company Alstom SA, to Indonesian government officials in exchange for a $118 million contract to provide power in that country.  The agreement highlights the broad jurisdictional and temporal reach of the FCPA and includes $88 million in fines, above the minimum Sentencing Guidelines range.  The acts at issue predate Marubeni’s 2012 Deferred Prosecution Agreement with the DOJ to resolve charges it bribed Nigerian officials for energy contracts.  See also “Bilfinger Settlement Highlights the Long Tail and Loose Jurisdictional Requirements of Criminal FCPA Charges,” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013). 

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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. 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)

    Bilfinger Settlement Highlights the Long Tail and Loose Jurisdictional Requirements of Criminal FCPA Charges

    Bilfinger SE has entered into a Deferred Prosecution Agreement with the DOJ to resolve charges that it and Houston-based Willbros Group paid more than $6 million in bribes to Nigerian officials to retain gas contracts related to the Eastern Gas Gathering System Project (EGGS).  Bilfinger agreed to pay a $32 million fine.  Willbros settled with the DOJ in 2008, paying $22 million to resolve charges related to EGGS (as well as charges relating to a bribery scheme in Ecuador).  One Willbros consultant was sentenced in May and several others pleaded guilty.  One former Willbros executive is currently a fugitive.  This article summarizes the case, extracting the compliance takeaways (including the attenuated U.S. nexus, the long tail of the investigation and the hybrid monitorship), and including a chart comparing the compliance requirements in the DPA to past corporate FCPA settlement agreements.  See “A Comparison and Examination of DOJ Compliance Program Requirements in FCPA Settlement Agreements,” The FCPA Report, Vol. 2, No. 19 (Sep. 26, 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.12 (Jun. 12, 2013)

    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 DOJ and the SEC recently announced significant FCPA settlements with Total S.A., a French oil and gas company.  Total faces charges that, starting in 1995, it used third parties to make illegal payments to a government official in Iran in order to obtain valuable oil and gas concessions.  The nearly $400 million civil and criminal settlement may not spell the end of Total’s troubles, however, as French authorities continue to investigate.  Total’s vulnerability in multiple jurisdictions highlights the increasing international cooperation among anti-corruption regimes and the possibility of carbon copy prosecutions.  The settlement agreement also demonstrates the importance of cooperation.  Experts say that Total’s fine, which does not include a reduction from the Sentencing Guidelines, as well as the long investigation that preceded the settlement, may stem from Total’s reluctant cooperation with authorities.  Total was also required to retain an external compliance monitor – a costly proposition many thought was becoming a rarity.   See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013); Part Two of Three, Vol. 2, No. 5 (Mar. 6, 2013); Part Three of Three, Vol. 2, No. 6 (Mar. 20, 2013).  This article analyzes these and other key compliance takeaways from the Total settlement, with input from practitioners.  This article also details the bribery scheme and the terms of the settlement, including the compliance program enhancements required by the DOJ.

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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.6 (Mar. 20, 2013)

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

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

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  • From Vol. 2 No.5 (Mar. 6, 2013)

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

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

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  • From Vol. 2 No.4 (Feb. 20, 2013)

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

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

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  • From Vol. 2 No.3 (Feb. 6, 2013)

    Former FinCEN Director James H. Freis, Jr. Discusses the Intersection between Anti-Money Laundering and Anti-Corruption Law (Part One of Two)

    One way prosecutors have pursued the FCPA’s broad jurisdictional reach and overcome some of the inherent challenges in corruption cases has been the use of a set of powerful tools – anti-money laundering laws.  The FCPA Report spoke with the nation’s former top anti-money laundering regulator, James H. Freis, Jr., about a range of issues, including how prosecutors use anti-monetary laundering laws in FCPA cases, how financial regulators are working together across the globe to combat corruption and the corruption challenges facing the gaming industry.  Freis was the director of the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) from 2007-2012 and is now Counsel at Cleary Gottlieb Steen & Hamilton LLP.  As Director of FinCEN, Freis led the development and enforcement of regulations, fighting not only money laundering and corruption, but terrorist financing, fraud and other financial crimes applicable to a broad range of financial institutions, including banks, securities and futures industry participants and insurance companies.  We are publishing our interview with Freis in two parts.  In the first part, Freis discussed, among other things, what companies should focus on when conducting corruption and anti-money laundering risk assessments and audits; how the DOJ and SEC work with FinCEN on corruption cases; and details regarding the formation, operation and future of the Egmont Group, a 130-member organization of international financial intelligence units.

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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.1 (Jan. 9, 2013)

    Germany-Based Insurer Allianz Pays $12.3 Million to Resolve SEC’s Books and Records and Internal Controls FCPA Charges

    Allianz, a German insurance and asset management company that previously had bonds registered with the SEC, recently resolved charges that an Indonesian joint venture in which Allianz’s Indonesian subsidiary invested made improper payments to employees of state-owned entities between 2001 and 2008.  Allianz agreed to pay $12.3 million.  The case demonstrates the government’s interpretation of the jurisdictional reach of the FCPA, the importance of whistleblowers and the increasing prevalence of FCPA cases that do not implicate the FCPA’s anti-bribery provisions.  See also “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).

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  • From Vol. 1 No.12 (Nov. 14, 2012)

    Finding Clarity in the New U.K. Bribery Act

    The U.K.’s Ministry of Justice has added another tool to its arsenal – like the U.S., it intends to use Deferred Prosecution Agreements (DPAs) for cases of economic crime, following a recent consultation and the overhaul of U.K. Bribery laws in July of last year.  That overhaul replaced elderly bribery laws regarded as ineffective to prosecute modern cases.  The new Bribery Act 2011 (Act) provides a consolidated scheme of offences and, unlike the FCPA, applies to bribery in both the public and private sectors.  Law enforcement agencies in the U.K. had two main mechanisms to deal with bribery and other economic crime by companies: criminal prosecution (followed by confiscation of illicit assets), or civil recovery under legislation which enables prosecutors to make a claim against a company to recover the proceeds of criminal conduct.  DPAs will offer a third option.  In a guest article, James Maton, a partner in Edwards Wildman Palmer UK LLP’s London office, provides details about the provisions of the Act and guidance issued by the U.K., and the government’s new policy on DPAs.  A forthcoming article in The FCPA Report will address specific actions companies can take in light of this new enforcement landscape in the U.K.

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    When, Why and How Should Companies Discipline Employees for FCPA Violations?

    When a company discovers an FCPA violation, and is faced with formulating a strategy to remediate the problem, one of the important and delicate considerations it must make is how to discipline the employees involved.  There are competing interests at work – the company needs to show the DOJ and the SEC that it reacted promptly and decisively, but it also must induce cooperation from key individuals in order to get to the root of the problem.  Termination may be appropriate for some employees, but companies must do so properly so as not to trigger retaliation; and other forms of discipline may be appropriate for employees with a less central role in the prohibited activities.  Determining the best proactive procedures to prevent misconduct, as well as the best reactive procedures once there has been a violation, and remedial measures to prevent reoccurrence, are paramount to minimize liability.  The government, once it is involved, may also pressure the company to take disciplinary action.  A further challenge hinges on the fact that information being provided in cooperating with the company, since it is not privileged, may be provided to the government for use in a possible criminal investigation.  This article provides context and practical guidance to companies navigating the disciplinary process.  In particular, this article discusses the application of the FCPA to employee conduct and how the government has treated employee discipline in the FCPA context.  Based on insight from experienced FCPA practitioners, this article addresses how to balance discipline with cooperation from employees during an internal investigation; strategies for inducing cooperation during the investigation; the privilege implications of cooperation; and considerations a company should weigh in considering disciplinary action, including government pressure and scrutiny of decisions, seniority of management, as well as disciplinary challenges in different jurisdictions.

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  • From Vol. 1 No.6 (Aug. 22, 2012)

    Four Ways to Minimize Multi-Jurisdictional Risk When Settling FCPA Charges with the DOJ or SEC

    It used to be that a corporation that wished to resolve claims of anti-corruption violations simply had to negotiate a settlement with U.S. authorities.  Until recently, most countries have been content to leave the United States to enforce the FCPA without venturing into the anti-corruption waters themselves.  Yet recent multi-jurisdictional developments in anti-corruption law – such as an increase in the enforcement of anti-corruption laws by foreign countries – have complicated companies’ abilities to settle anti-corruption investigations with certainty and predictability.  Indeed, foreign investigations following DOJ and SEC settlements have been increasing steadily, including investigations arising out of the Siemens, Panalpina and Bonny Island FCPA settlements.  This enforcement trend highlights the need for careful strategic planning, on a multi-jurisdictional level, for handling anti-corruption investigations and settlements.  In a guest article, Charles F. Smith and Gary DiBianco, both partners at Skadden, Arps, Slate, Meagher & Flom LLP, and Brittany Parling, a Skadden associate, discuss trends in multi-jurisdictional enforcement of anti-corruption laws and lay out four factors companies should consider when negotiating and evaluating settlements in a multi-jurisdictional context.

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