Posts

A Resource Guide to the U.S. Foreign Corrupt Practices Act (FCPA), Nov 2012

Released in November 2012, A Resource Guide to the U.S. Foreign Corrupt Practices Act is the Department of Justice’s and Securities and Exchange Commission’s detailed compilation of information about the FCPA, its provisions, and enforcement.

It is the product of extensive efforts by experts at DOJ and SEC, and has benefited from valuable input from the Departments of Commerce and State. It endeavors to provide helpful information to enterprises of all shapes and sizes, from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world.

The Guide addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions; the definition of a “foreign official;” what constitute proper and improper gifts, travel and entertainment expenses; the nature of facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context.

Read more

Assistant Attorney Lanny Breuer Speaks on the U.S. Foreign Corrupt Practices Act


Washington, D.C. ~ Tuesday, November 8, 2011

Lanny Breuer, Assistant Attorney General, DOJThank you, Homer, for that kind introduction. This is the third year in a row that I have had the privilege of addressing this conference. It is an honor each time, and I am delighted to be here with you again today.

In at least one respect, this past year has been no different from the two years that preceded it: The Justice Department has been vigorously enforcing the Foreign Corrupt Practices Act and achieving strong results. As we speak, in federal court in Washington, D.C., we are in the middle of our fourth FCPA trial of the year – more than in any prior year in the history of the Act. And just two weeks ago, we secured the longest prison sentence – 15 years – ever imposed in an FCPA case .

In other respects, however, the world has witnessed historic changes in the last year that highlight the importance of our mission to fight corruption at home and abroad, including by enforcing the FCPA. Having addressed you on two prior occasions, I know that you are all well aware of the Justice Department’s enforcement record. And during this conference, you will be hearing many expert analyses of our recent enforcement trends. So, what I want to do with you today, rather than tell you about our cases, is to place our FCPA work in context and share with you my perspective on recent efforts to amend the Act.

Read more

U.S. Department of Justice Asst Attorney General Update on Foreign Corrupt Practices Act (FCPA)


Assistant Attorney General Lanny A. Breuer Speaks at the 26th National Conference on the Foreign Corrupt Practices Act
Washington, D.C. ~ Tuesday, November 8, 2011

Thank you, Homer, for that kind introduction. This is the third year in a row that I have had the privilege of addressing this conference. It is an honor each time, and I am delighted to be here with you again today.

In at least one respect, this past year has been no different from the two years that preceded it: The Justice Department has been vigorously enforcing the Foreign Corrupt Practices Act and achieving strong results. As we speak, in federal court in Washington, D.C., we are in the middle of our fourth FCPA trial of the year, more than in any prior year in the history of the Act. And just two weeks ago, we secured the longest prison sentence,15 years, ever imposed in an FCPA case .

In other respects, however, the world has witnessed historic changes in the last year that highlight the importance of our mission to fight corruption at home and abroad, including by enforcing the FCPA. Having addressed you on two prior occasions, I know that you are all well aware of the Justice Department’s enforcement record. And during this conference, you will be hearing many expert analyses of our recent enforcement trends. So, what I want to do with you today, rather than tell you about our cases, is to place our FCPA work in context and share with you my perspective on recent efforts to amend the Act.

Read more

Justice Dept Plans New Guidance on Foreign Bribery Enforcement

Washington DC, Nov 8, 2011. A U.S. Justice Department official said today the agency is planning to release new guidance next year on foreign bribery civil and criminal enforcement provisions. Whether the guidance appeases critics of stepped up Foreign Corrupt Practices Act investigations and prosecutions is another question.

Assistant Attorney General Lanny Breuer of the Criminal Division said in a speech today in Washington that the Justice Department has “no intention whatsoever of supporting reforms whose aim is to weaken the FCPA and make it a less effective tool for fighting foreign bribery.”

Breuer said “watering down” the FCPA, for instance, removing the successor liability component, would only serve “to send exactly the wrong message” in the global fight against corruption. The U.K. Bribery Act took effect in July. China and Russia have also adopted anti-bribery laws, Breuer noted.

Read more

Study Finds Top Corporate Officials Are Often FCPA Targets

Oct 5, 2011. The buck often stops with the president, chief executive or chief operating officers of a company on foreign-bribery issues, according to a new study.

More than one-third of the 61 individuals who were the subject of government-initiated actions under the Foreign Corrupt Practices Act in the last six years were at the top of their companies, the study by Chadbourne & Parke LLP found. Meanwhile, other positions such as vice president, head of sales or regional manager together only faced about one third of enforcement actions.

“It is becoming clear that FCPA enforcement is not just limited to companies that fail to maintain the highest ethical and anti-corruption standards but to its executive management as well,” said M. Scott Peeler, a partner in Chadbourne’s New York office, in a statement.

Read more

Chinese, US officials confab on foreign bribery

Aug 5, 2011. By now, Justice Department and Securities and Exchange Commission officials are inured to giving presentations on their enforcement of the Foreign Corrupt Practices Act to groups of defense lawyers and in-house counsel, usually crammed in hotel conference rooms in Washington or New York. The outreach is all part of the job.

But recently, they took their show on the road, to Beijing.

U.S. and Chinese officials have been meeting for months under the auspices of a joint anti-corruption working group. Before February, a large part of those discussions centered on the need, from the U.S. perspective, for China to amend its criminal law to outlaw foreign bribery.

Read more

What The Siemens Bribery Case Says About The Future Of Corruption In China

The participation of the U.S. government, and the information it shared with Chinese enforcement officials, shows that the global fight against corruption has entered a new phase.

The China-end of the Siemens bribery scandal came to a conclusion in an Intermediate Court in Henan last month when a China Mobile executive received a death sentence. For the most part, this was just another anti-corruption case, one of a multitude flooding China’s courts these days. However, the participation of the U.S. government, and the information it shared with Chinese enforcement officials, serves as an important reminder that the global fight against corruption has entered a new phase.

Since the case involved state secrets and was therefore not opened to the public, there hasn’t been a lot of reporting on the verdict. Caixin, however, published a breakdown of the case today:

Read more

10 misconceptions that increase the likelihood of FCPA violations

Chicago, Apr 14, 2011. With the increase in litigation over the last four years around the 30-year-old Foreign Corrupt Practices Act (FCPA) putting a spotlight on bribery among public officials in foreign jurisdictions, consultancy Grant Thornton has teamed with enterprise risk specialist EthicsPoint to create a paper that looks at 10 common misconceptions that can increase the likelihood of corporate FCPA violations.

“The large number of FCPA cases and the formation of specialized FCPA units within Federal agencies, suggest that this is a long-term initiative for regulators,” said Bill Olsen, Grant Thornton economic advisory service principal and the firm’s FCPA practice leader. “While working with our clients to address issues in this area, we have observed that many multinational organizations are especially interested in tactics that will fully address their FCPA risks.”

“Organizations doing business globally usually have a robust ethics and compliance program in place,” said David Childers, president and CEO of EthicsPoint. “Having a management-supported program visible in the organization helps show a company’s commitment to conducting business correctly — and can reduce potential penalties.”

Read more

Foreign bribery enforcement actions by U.S. agencies doubled in 2010

Apr 12, 2011. The total number of enforcement actions nearly doubled from 2009 to 2010, rising from 45 actions (against 12 companies and 33 individuals) to 76 (23 companies and 53 individuals). And 2009 trumped the numbers from 2008, when 37 enforcement actions were brought (against 11 companies and 26 individuals).

“I would predict that the steady rate will continue,” says Pendergast, who added that he sees “a steady stream of enforcement.” Pendergast says he and Timothy Dickinson, also a partner in Paul Hastings’ D.C. office, have witnessed significant staff at both the SEC and DOJ working on FCPA matters. “I’m sure there’s more in the pipeline,” says Pendergast.

“A hot topic in the second quarter is also likely to be the UK Bribery Act as companies have one quarter left before the Act goes ‘live’ on July 1st,” says Koehler. “However, companies should take a rational approach and realize that if they have effective FCPA policies and procedures already in place, there is likely very little they need to do to further comply with the Bribery Act, despite frequent marketing pitches to the contrary.”

Read more

The Rise and Rise of the FCPA

Mar 24, 2011. Deloitte’s fourth version of its ‘Look before you leap’ survey on global risk includes much more focus on the Foreign Corrupt Practices Act (FCPA), due in part to increased enforcement of the regulation over the past decade.

The regulation has been on the books for significantly longer – it was enacted in 1977 to make it unlawful to make payments to foreign government officials in order to obtain business – but given increased international trade and commerce over the last 30 years and, more cynically, the profitability enforcement has garnered for the government, Deloitte’s new focus makes perfect sense.

Almost two thirds (63 percent) of respondents, who included corporate executives, investment bankers, private equity executives and hedge fund managers, say the FCPA and anti-corruption legislation have led to aborted or renegotiated deals such as M&A, joint ventures and distributor relationships.

Read more