The FCPA Report

The definitive source of actionable intelligence covering the Foreign Corrupt Practices Act

Articles By Topic

By Topic: Customs

  • From Vol. 6 No.2 (Feb. 1, 2017)

    After Two Extensions of Its DPA, Zimmer Biomet Settles Further FCPA Charges for $30M

    Biomet’s continued misconduct during the term of its 2012 deferred prosecution agreement, including its bribery of Mexican customs agents and persistent use of a third-party distributor known to have paid bribes in Brazil has led to a new resolution with the DOJ and SEC. The DOJ extended Biomet’s 2012 deferred prosecution agreement twice while the investigation was pending, and now the company (purchased in 2015 by Zimmer, which also bought the DPA obligations) will pay $30 million dollars to resolve the claim in a new settlement, and will take on another monitor for three years. See also “Dan Newcomb Discusses the Unusual Second Extension of Biomet’s DPA” (Apr. 20, 2016).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    Customs Corruption Risks:  Should a Company Ever Pay a Facilitation Payment to a Customs Official? (Part Three of Three)

    Moving goods from one country to another – a staple of many businesses – exposes companies to various points of bribery risk as employees try to navigate different customs regimes and expedite shipments.  One particular area of risk is the temptation to give a customs official a small “grease payment” to quickly clear goods through customs.  Under certain circumstances such payments may be permissible – but not always.  This article, the final installment of The FCPA Report’s series on anti-corruption risks related to customs, takes an in-depth look at facilitation payments in the customs process, which have become “a trap for the unwary,” according to Boies, Schiller & Flexner partner Scott Wilson.  The article examines when, if ever, companies should allow facilitation payments and, if so, how companies should structure their facilitation payment policies.  The first article gave an overview of the types of corruption risks companies face when engaging in international trade, and suggested four ways to mitigate them.  The second looked at the role third parties, such as customs brokers and freight forwarders, play in customs corruption risk and discussed how companies can minimize those risks through due diligence, communicating expectations, contract language and monitoring.  See also “Designing a Facilitation Payments Policy to Minimize Liability and Retain Flexibility (Part One of Two),” The FCPA Report, Vol. 1, No. 4 (Jul. 25, 2012); Part Two, Vol. 1, No. 5 (Aug. 8, 2012).

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  • From Vol. 4 No.23 (Nov. 4, 2015)

    Customs Corruption Risks: Four Ways to Limit the Risks of Working with Customs Brokers, Freight Forwarders and Other Third Parties (Part Two of Three)

    Importing and exporting goods across borders exposes companies to corruption risks on a number of fronts.  Third-party risks are particularly prevalent because international trade often requires that a company work with agents such as customs brokers and freight forwarders.  This second article in The FCPA Report’s series on customs risks examines the risks posed by third parties in the customs process and identifies four key strategies for mitigating those risks.  The first article in the series examined how the customs system works and the risks associated with that system, including books and records violations for inaccurate customs forms and the temptation for employees to make illegal payments to customs officials to ensure that their paperwork is approved as quickly as possible.  The third article will discuss facilitation payments in the customs context, including whether companies should allow such payments and, if so, how they can structure their compliance policies to minimize risks.  See also “Anti-Corruption and Trade Regulations: Identifying Common Elements and Streamlining Compliance Programs (Part One of Two),” The FCPA Report, Vol. 3, No. 14 (Jul. 9, 2014); and Part Two, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 4 No.21 (Oct. 21, 2015)

    Customs Corruption Risks: Identifying the Problem Areas (Part One of Three)

    Moving goods from one country to another – a staple of many businesses – exposes companies to various points of bribery risk as employees try to navigate different customs regimes and expedite shipments.  In this three-article series, we explore customs-related hurdles and FCPA risks.  This, the first article in the series, examines how the customs system works and the risks associated with that system, including books and records violations for inaccurate customs forms and the temptation for employees to make illegal payments to customs officials to ensure that their paperwork is approved as quickly as possible.  The article also outlines four ways to mitigate customs risks.  The second article in the series will take a closer look at how to address the risks arising from working with customs brokers, freight forwarders and other third-party vendors.  The third article will discuss facilitation payments in the customs context, including whether companies should allow such payments and, if so, how they can structure their compliance policies to minimize risks.  See also “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. 2 (Jun. 6, 2012).

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  • From Vol. 4 No.21 (Oct. 21, 2015)

    How the Department of Commerce Can Help Companies Address Anti-Corruption and Cybersecurity Concerns

    When the SEC or the DOJ talk about the FCPA, businesses stop and listen.  But the U.S Department of Commerce, the agency tasked with promoting the interests of U.S. businesses both domestically and abroad, can also assist companies with anti-corruption compliance.  During the Society for Corporate Compliance and Ethics’ 2015 Compliance and Ethics Institute, Justin Antonipillai, Acting General Counsel at the Commerce Department, spoke about the Department’s role in FCPA enforcement and highlighted how the Department can help companies with various compliance concerns.  We summarize the key takeaways from his presentation.  See “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. 1 No.2 (Jun. 20, 2012)

    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

    This article includes the second part of The FCPA Report’s in-depth interview with Brian Loughman and Richard Sibery, leaders of the Fraud Investigation and Dispute Services Practice at Ernst and Young LLP (E&Y).  Our interview focused on the critical decision points for global companies confronting anti-bribery issues when operating abroad.  We covered a lot of ground and, in the process, conveyed much of the key substance of the recent book by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley 2012).  In light of its length and depth, we have published our interview as a two-part series.  This second part covers topics including: the dangers of petty cash; the nuts and bolts of transaction testing; FCPA-specific due diligence considerations for mergers and acquisitions; whether a company should combine an anti-corruption audit with a general audit; and best interviewing and communication techniques.  The first part of the interview dealt with the challenges of designing an effective FCPA training program, techniques of effective third party due diligence and risk assessments and other actionable topics.  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).

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  • From Vol. 1 No.1 (Jun. 6, 2012)

    Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice

    Brian Loughman is the Americas Leader of the Fraud Investigation & Dispute Services Practice at Ernst & Young LLP (E&Y), and Richard Sibery leads E&Y’s Fraud & Investigations Group within the Fraud Investigation & Dispute Services Practice.  In those roles, Loughman and Sibery have amassed deep, detailed and current experience with global anti-bribery investigations and remediation – the sort of practical know-how that only comes with extensive, on-the-ground experience.  The FCPA Report recently had the privilege of conducting a wide-ranging interview with Loughman and Sibery.  The general intent of the interview was to identify the most pressing anti-bribery issues facing global companies and specific strategies for addressing those issues.  In this sense, our interview sought to paraphrase some of the more important points made in the book recently written by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley, 2012).  In particular, our interview covered: the challenges of designing an effective FCPA training program; the utility of certification programs; techniques of effective third party due diligence and risk assessments; issues surrounding customs payments, including the difficult issue of facilitation payments; the dangers of petty cash; the nuts and bolts of transaction testing; why M&A transactions pose unique due diligence challenges; whether an anti-corruption audit and a general audit plausibly may be combined; and best practices for interviewing and communications.  We are publishing the full transcript of our interview with Loughman and Sibery in two parts: the first part is included in this issue of The FCPA Report and the second part will be included in the next issue.

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