The Anti-Corruption Report

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

Articles By Topic

By Topic: Declinations

  • From Vol. 7 No.19 (Sep. 19, 2018)

    Sanofi SEC Settlement Offers Lessons on Pharma Discounts, Samples and Receipts

    French pharmaceutical giant Sanofi recently settled books-and-records and internal controls issues with the SEC, months after receiving a DOJ declination. “Bribery in connection with pharmaceutical sales remains as a significant problem despite numerous prior enforcement actions involving the industry and life sciences more generally,” Charles Cain, FCPA Unit Chief at the SEC, observed in a press release. “While bribery risk can impact any industry, this matter illustrates that more work needs to be done to address the particular risks posed in the pharmaceutical industry,” he said. The company used common techniques to funnel bribes to officials in Kazakhstan and the Middle East, and the settlement provides lessons about how to properly manage discounts, samples and GT&E expenses. See “Teva’s $519 Million FCPA Settlement Highlights Hazards of Local Production Requirements” (Jan. 18, 2017).

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  • From Vol. 7 No.12 (Jun. 13, 2018)

    Anti-Corruption Enforcement Continues Apace Under New Administration

    The first year-and-a-half of the Trump Administration has brought with it questions about whether the Obama Administration’s active enforcement of the FCPA would continue. For now, FCPA enforcement seems to be here to stay. In a guest article examining the current state of U.S. FCPA enforcement, Dechert partner Jeremy Zucker and associates Darshak Dholakia, Hrishikesh Hari, Jacob Grubman and Eric Auslander argue that certain anti-corruption enforcement trends identified in the latter years of Barack Obama’s presidency have continued to develop, though others may be overstated. See “SEC and DOJ Officials Predict That Current FCPA Enforcement Trends Will Continue, Defense Attorneys Agree” (May 2, 2018).

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  • From Vol. 7 No.9 (May 2, 2018)

    Dun & Bradstreet Settles for $9 Million with SEC and Receives DOJ Declination for China Subsidiary Misconduct

    A company named one of the world’s most ethical in March 2018 for the tenth consecutive year settled FCPA charges with the SEC for $9 million in April. The SEC issued a cease-and-desist order against Dun & Bradstreet Corporation relating to improper payments made by subsidiaries to Chinese government officials after a six-year investigation. The DOJ simultaneously issued a declination and stated that its decision is “consistent with the FCPA Corporate Enforcement Policy” citing Dun & Bradstreet’s self-disclosure, cooperation, remediation and assistance in identifying individuals responsible for misconduct. Dun & Bradstreet, however, only self-disclosed its China problem after a revelation on a Chinese television program prompted a local police raid on its subsidiary there. The Anti-Corruption Report addresses the takeaways from the resolution. See our three-part series on the DOJ’s FCPA Corporate Enforcement Policy: “What’s New and What’s Not” (Jan. 10, 2018); “How Important Is the Presumption of Declination?” (Jan. 24, 2018); and “Cooperation and Compliance Expectations” (Feb. 7, 2018).

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  • From Vol. 7 No.2 (Jan. 24, 2018)

    DOJ’s FCPA Corporate Enforcement Policy: How Important Is the Presumption of Declination? (Part Two of Three)

    For the most part, the DOJ’s new FCPA Corporate Enforcement Policy was a codification of the Pilot Program it announced in 2016, but there were a few significant changes that may – or may not – change the criminal FCPA enforcement landscape. Perhaps the biggest and most important change is the new presumption that a company that self-reports an anti-corruption issue will receive a declination. However, there are exceptions to that presumption that preserve prosecutorial discretion, leaving some practitioners wondering whether this is really a change at all. In this second article in a three-part series, we discuss the implications of the presumption of declination. See “DOJ’s FCPA Corporate Enforcement Policy: What’s New and What’s Not (Part One of Three)” (Jan. 10, 2018).

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  • From Vol. 6 No.17 (Sep. 6, 2017)

    The Meaning of Declinations Obtained by IBM, MTS, Net1, Newmont Mining and Vantage

    A flurry of recent FCPA declinations has left some practitioners wondering whether these quiet resolutions are emblematic of a less aggressive approach to FCPA enforcement by a still-young Trump administration. The Anti-Corruption Report talked to practitioners about the significance of declinations obtained by IBM, MTS, Net1, Newmont Mining and Vantage; how these resolutions are related to the Pilot Program, which is currently under review; and the implications for other corporations. See also “First FCPA Actions Under Sessions’ DOJ Are Declinations With Disgorgement” (Jul. 19, 2017).

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  • From Vol. 6 No.14 (Jul. 19, 2017)

    First FCPA Actions Under Sessions’ DOJ Are Declinations With Disgorgement 

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

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  • From Vol. 6 No.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. 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.20 (Oct. 12, 2016)

    A Close Look at the DOJ’s New Declination-Plus-Disgorgement Settlement Approach

    In late September, the DOJ publicly declined to prosecute two privately held corporations, NCH and HMT, for FCPA violations, asking only that the companies disgorge the profits from their respective bribery schemes. Each company’s counsel received a letter announcing that the Department was closing its investigation “[c]onsistent with the FCPA Pilot Program.” An “NPA-lite,” as Ryan Rohlfsen, a Fraud Section alumni and partner at Ropes and Gray, has coined the new settlement approach, carries significant benefits for companies subject to FCPA investigations. This article explores those benefits as well as the policy implications of the DOJ’s latest move. See “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. 5 No.20 (Oct. 12, 2016)

    GSK SEC Settlement Highlights Multi-Jurisdictional Enforcement Risk

    Two years after the Chinese government fined GlaxoSmithKline $490 million for bribing health care practitioners there, the SEC has resolved FCPA charges with the company for $20 million for the same conduct. The settlement “does not refer to profit or gain figures, or tie the fine to such figures,” Gary DiBianco, a partner at Skadden, told The FCPA Report, which may mean the SEC took into account the Chinese government’s penalty. The DOJ declined to prosecute. The settlement is the latest in a series of FCPA actions against pharmaceutical companies. As a result of those investigations, compliance obligations negotiated as a part of settlements and proactive compliance improvements, anti-corruption programs in the pharmaceutical sector have evolved to be among the most sophisticated among all multinational corporations, DiBianco said. See also “Seven Lessons From China’s Bribery Investigation of GlaxoSmithKline” (Aug. 7, 2013). 

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    SEC Settles FCPA Case With the Former CEO of Harris Corp.’s Chinese Subsidiary but Declines to Go After Harris

    Harris Corp., a Florida-based international communications and information technology company, found an unwelcome surprise after it purchased CareFx Corp. During a post-acquisition audit in 2012, Harris discovered that the Chinese division of its new subsidiary was engaged in an ongoing bribery scheme. Harris reported the wrongdoing to the SEC and DOJ, cooperated and remediated and subsequently avoided civil and criminal FCPA charges, while the former CEO of the Chinese subsidiary settled charges with the SEC for $46,000. The SEC asserted that the former CEO condoned the bribery scheme and failed to disclose it to Harris. “[F]or the first time in a case involving only FCPA misconduct, the authorities have given a large public multinational company a full declination after charging a former employee with FCPA violations that, on their face, would have resulted in the past in a multi-million dollar enforcement action against the company,” Robert Kent, a partner at Baker & McKenzie and lead counsel for Harris in the CareFx China investigation, told The FCPA Report. See also “PetroTiger’s Counsel Reveals the Defense Strategy That Led to a DOJ Declination” (Jul. 22, 2015).

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  • From Vol. 5 No.15 (Jul. 27, 2016)

    Could Johnson Controls Have Prevented the Flagrant Circumvention of Its Revamped Compliance Program?

    Johnson Controls (JCI) has agreed to pay $14 million to resolve SEC charges that employees of its subsidiary China Marine undermined the company’s revamped internal controls systems to make payments to sham vendors. Nicholas Berg, a partner at Ropes & Gray, said that “the Chinese subsidiary’s employees appear to have engaged in a carefully orchestrated effort to evade those controls in a way that was extremely difficult to detect.” Notably, China Marine was being supervised by a monitor in connection with a prior FCPA settlement both at the time it was acquired by JCI and when the illicit actions occurred. The DOJ announced its decision not to prosecute by publicly releasing a letter it sent to JCI, the third such letter since the implementation of the Pilot Program. The settlement highlights compliance issues, including the proper design of risk-based controls and internal reporting incentives. It also raises enforcement questions such as how long a company can wait to self-report under the Pilot Program and whether the DOJ had a case against JCI. See “Using the FCPA Pilot Program’s Remediation Requirements to Build a Best-in-Class Compliance Program” (May 18, 2016).

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    The Pilot Program in Practice: A Comparison of Pre- and Post-Program Resolutions

    The Department of Justice recently signaled major developments in its anti-bribery enforcement initiatives with the release of its Foreign Corrupt Practices Act Enforcement Plan and Guidance and the announcement of its yearlong pilot program. But, will the DOJ’s new and improved enforcement protocol result in benefits to companies who choose to self-report, cooperate and remediate? In a guest article, Ropes & Gray’s Ryan Rohlfsen, Timothy Farrell and Dante Roldan examine – and provide detailed charts illustrating – the differing outcomes of DOJ cases before and after the recent policy announcements. See also “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. 5 No.12 (Jun. 15, 2016)

    How Nortek and Akamai Escaped SEC and DOJ Prosecution for Chinese Bribery

    Nortek, a home security and ventilation manufacturer, and Akamai Technologies, a cloud services provider, have entered into non-prosecution agreements with the SEC in unrelated cases, after each company self-reported corruption at subsidiaries in China. Nortek will pay about $320,000 and Akamai will pay about $670,000 to resolve the matters. The DOJ also issued letters indicating that it will decline to prosecute both companies. Together with the NPAs, these declinations are widely seen as a signal from the government that self-reporting, cooperation and remediation can net a company more than just a penalty discount. We explore the settlements and what lies behind 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. 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. 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.20 (Oct. 7, 2015)

    Remediation, Cooperation and No Bribery Allegations Net Hyperdynamics a $75,000 Civil FCPA Settlement

    A few months after the DOJ declined to prosecute, the SEC announced that it has resolved its FCPA charges against Hyperdynamics for a $75,000 penalty.  On September 29, 2015, the SEC issued a Cease-and-Desist Order finding that the small oil and gas exploration company’s insufficient internal controls resulted in payments to third parties owned by a Guinean employee of the company. The penalty reflects Hyperdynamics cooperation and remediation efforts and perhaps the lack of any bribery allegations, but that number is dwarfed by the $12.7 million Hyperdynamics’ reported that it spent on the FCPA investigation of its African operations.  Scott Wilson, a partner at Boies, Schiller & Flexner, told The FCPA Report that this settlement “highlights that there are anti-corruption compliance risks even for a very small firm,” and Daniel Fetterman, a partner at Kasowitz, Benson, Torres & Friedman, emphasized that the lack of direct bribery allegations is not all that unusual.  See also “How Can Companies Capture the Telecom, Energy and Resources Opportunity in Africa While Mitigating the Risk?,” The FCPA Report, Vol. 2, No. 20 (Oct. 9, 2013).

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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.16 (Aug. 5, 2015)

    Dissecting Mead Johnson’s $12 Million Chinese Baby Formula Bribe Settlement

    In the fifth FCPA enforcement action this year brought only by the SEC, Mead Johnson has agreed to pay $12.03 million to settle charges that its Chinese subsidiary created a slush fund with distributor discounts and used that money to bribe health care practitioners to recommend its baby formula and collect marketing information about new mothers.  The case is the latest in a line of Chinese health care FCPA enforcement actions, which may be taking on new life after the Chinese GSK case, Marc Alain Bohn, counsel at Miller & Chevalier, told The FCPA Report.  We discuss the case and the compliance lessons, including the ramifications of Mead Johnson’s failure to self-report, and why the DOJ has reportedly declined to bring a parallel action.  See also “What Does the PetroTiger Case Mean for FCPA Compliance?  Sigelman’s Attorneys and Other Experts Weigh In,” The FCPA Report, Vol. 4, No. 13 (Jun. 24, 2015).

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  • From Vol. 4 No.15 (Jul. 22, 2015)

    PetroTiger’s Counsel Reveals the Defense Strategy That Led to a DOJ Declination

    Three of the company’s senior managers were involved in the bribery scheme, including the CEO (who pled guilty during his trial on June 15), and yet the DOJ declined to prosecute PetroTiger for FCPA violations – its first public declination since Morgan Stanley.  The case is a source of hope for companies with FCPA issues, Timothy Treanor told The FCPA Report.  Treanor, a partner at Sidley Austin who negotiated with the government on behalf of PetroTiger, discussed why he and his team were able to achieve such a favorable result and convince the government that this was indeed the case of a “rogue CEO.”  Treanor emphasized that he thinks the FCPA bar can get further with the government than it may expect, and discussed the self-reporting calculation, the struggle to operate a business during the government investigation, strategies for the negotiation, and more.  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.13 (Jun. 24, 2015)

    What Does the PetroTiger Case Mean for FCPA Compliance?  Sigelman’s Attorneys and Other Experts Weigh In

    The DOJ’s latest FCPA trial, the case against former PetroTiger CEO Joseph Sigelman, ended abruptly in a guilty plea on June 15 after the government’s star witness admitted to perjury on the stand.  The DOJ also declined to prosecute PetroTiger in its second public FCPA declination (the first was the oft-cited Morgan Stanley case).  How did the parties approach the trial?  How do they assess the plea?  What do the plea and declination mean for FCPA enforcement and compliance?  Sigelman’s attorneys, the DOJ and other FCPA experts shared their insights on those questions and more with The FCPA Report.  See also “A Guilty Plea and Two Flight Risks in PetroTiger Colombian Bribery Case,” The FCPA Report, Vol. 3, No. 2 (Jan. 22, 2014).

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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.5 (Mar. 4, 2015)

    Alston & Bird Experts Assess Eli Lilly’s Belated DOJ Declination

    Over two years after the SEC settled FCPA charges with pharmaceutical giant Eli Lilly, the company has announced that the DOJ has declined to bring charges relating to the same conduct.  Edward Kang, a partner at Alston & Bird, and senior associates Brian Frey and Jason Popp, discussed the compliance takeaways from the lagging declination and the enforcement climate for the pharmaceutical industry with The FCPA Report.  See “Pharma Giant Eli Lilly Agrees to $29.4 Million Consent Judgment to Settle SEC Charges of FCPA Violations Arising Out of Its Operations in Russia, China, Brazil and Poland,” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013).

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  • From Vol. 3 No.22 (Nov. 5, 2014)

    Layne Christensen Resolves FCPA Civil Charges After DOJ Declination; Details Its Extensive Cooperation

    Layne Christensen, a global water management, construction and drilling company based in Kansas, has settled the SEC’s charges concerning improper payments to African officials to obtain favorable tax treatment and reduced customs duties, among other things, for $5.1 million.  The DOJ declined to prosecute the company, and both the government and the company have touted Layne’s self-disclosure and extensive cooperation for the relatively favorable treatment.  See also “Compliance Experts from Altria, Noble Energy and HP Share Corruption Investigation Best Practices,” The FCPA Report, Vol. 3, No. 18 (Sep. 10, 2014).

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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.14 (Jul. 10, 2013)

    How Can a Company Improve Its Chances of Obtaining an FCPA Declination?

    In 2012, the DOJ publicly announced that it had declined to prosecute Morgan Stanley for FCPA violations caused by a rogue employee in Shanghai.  The declination was notable because it was publicly announced and because of the egregious nature of the misconduct involved.  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).  A recent program at the Momentum Event Group’s Global Anti-Corruption Congress, “Lessons Learned from Recent High Profile FCPA Declinations,” featured a panel discussion of several recent FCPA declinations.  The panelists, who were closely involved in those matters, presented their views of why the declinations were issued and how companies facing FCPA violations can improve their chances of receiving a declination.  This article summarizes the key insights from that discussion.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

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

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

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Chamber of Commerce Speaks Out About the FCPA Guidance

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

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  • From Vol. 1 No.13 (Nov. 28, 2012)

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

    A large part of this issue of The FCPA Report is dedicated to explaining the practical implications of the “Resource Guide to The U.S. Foreign Corrupt Practices Act” (Guide or Guidance), jointly issued on November 14, 2012 by the DOJ and SEC.  Generally, this issue analyzes the Guidance from two perspectives: the practitioner perspective and the regulator perspective.  Specifically, this issue contains two articles from each of the two perspectives.  From the practitioner perspective, this article – the first in a two-part series – surveys a wide range of leading law and accounting firm partners focused on the FCPA on the most important issues covered by the Guidance.  In particular, this article discusses: why the Guide was created and issued; how companies and their counsel can use the Guide, including how the hypotheticals provided can inform decision-making; advice that can be distilled from the Guide on gifts, travel and entertainment; deficiencies in the Guide and which areas of the law remain unclear; and the highlights and lowlights of the declination section of the Guide.  Our multi-perspective coverage is intended to offer a 360-degree view of the Guidance and its practical import.  At a granular level, our coverage is intended to offer specific strategies to law, accounting and compliance professionals seeking to bring their compliance policies into conformity with regulator expectations.  In addition, our coverage of the Guidance is intended to offer concrete suggestions to anti-bribery professionals on avoiding, handling and settling enforcement actions, conducting internal investigations and executing mergers and acquisitions.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

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

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

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    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.10 (Oct. 17, 2012)

    Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations

    In April 2012, Morgan Stanley Managing Director Garth Peterson pleaded guilty to one count of conspiring to circumvent Morgan Stanley’s internal controls in violation of the FCPA.  The plea was the result of his efforts to enrich himself and the Chinese official who facilitated a Shanghai real estate deal with his Morgan Stanley unit.  Notably, the DOJ indicated that it was declining to bring charges against Morgan Stanley as a result of Peterson’s misconduct.  In a recent webcast, Morgan Stanley’s anti-corruption chief, Raja Chatterjee, and its outside counsel from Davis Polk & Wardwell LLP, discussed the “unprecedented and important” decision not to prosecute Morgan Stanley for Peterson’s FCPA violations.  They believe that, by declining to prosecute Morgan Stanley, the DOJ has made a statement that “compliance matters” and that an effective compliance program can be a mitigating factor in an FCPA investigation.  This article summarizes the webcast with a view to identifying the lessons that can be learned from the Morgan Stanley matter.  See also “Civil and Criminal Enforcement Actions Against Former Morgan Stanley Employee Highlight the Relevance of the FCPA for Private Fund Managers,” The Hedge Fund Law Report, Vol. 5, No. 19 (May 10, 2012).

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