The FCPA Report

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

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By Topic: Insurance

  • From Vol. 1 No.5 (Aug. 8, 2012)

    FCPA Investigation Protection: D&O Insurance and Beyond

    Few subjects receive as much attention in legal, compliance and accounting circles these days as the FCPA, the United Kingdom Bribery Act and other foreign and international anti-corruption laws.  However, while legal issues, compliance questions and legislative initiatives are the subject of constant scrutiny from companies, legal counsel, blogs, commentators and lobbyists, one potential means of ameliorating FCPA risk receives relatively little consideration: insurance.  So, what can a company do in the insurance context to protect itself against the costs of an FCPA investigation and/or proceeding?  In a guest article, M. Machua Millett, a Senior Vice President at international insurance brokerage firm Marsh USA, Inc., addresses this important question.

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  • From Vol. 1 No.2 (Jun. 20, 2012)

    When and How Can Insurance Policies Offset the Costs of FCPA Investigations?

    Recently announced probes into the foreign business practices of several major U.S. corporations highlight that we are in an era of heightened FCPA enforcement.  The SEC and the DOJ together conducted more than 250 FCPA-related investigations in the past two years, and a significant jump in enforcement actions is expected in 2012.  Renewed vigilance has brought with it increased consequences.  The government levied penalties totaling more than $1.2 billion from 2002 through 2008, and it has become more aggressive in recent years.  In 2010, for example, U.S. companies paid out a record of nearly $1.8 billion in fines and disgorgement.  Beyond the monetary liabilities associated with FCPA violations, the ancillary costs of investigating and defending such claims can be quite significant.  Depending upon the complexity of the allegations and the size of the company facing them, these costs can accumulate for years and grow to truly staggering proportions.  In light of the heightened FCPA enforcement environment and the potentially significant costs of investigating, defending and settling claims, companies need to understand how insurance policies and principles interact with the FCPA.  In a guest article, John A. Gibbons, a partner and deputy leader of Dickstein Shapiro LLP’s insurance coverage practice, along with Andrew N. Bourne and Jonathan Ari Zakheim, both associates in Dickstein Shapiro’s insurance coverage practice, provide the analysis on which such an understanding can be built.  The article starts with a brief background of the FCPA, then discusses four of the chief insurance issues implicated by the FCPA, namely: FCPA investigations as a “claim” under typical directors and officers insurance policies; reliance by insurance companies on policy exclusions; coverage for restitution and disgorgement; and FCPA-specific insurance products.  In the course of their analysis, the authors offer a comprehensive discussion of the relevant case law.

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