The FCPA Report

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

Articles By Topic

By Topic: Deferred Prosecution Agreements

  • From Vol. 6 No.5 (Mar. 15, 2017)

    Rolls Settlement Illuminates SFO Expectations for Cooperation and Compliance

    Rolls-Royce’s recent settlement with U.K., U.S. and Brazilian authorities was a key development in global anti-corruption enforcement. The case opens a window into what the SFO, now a major player on the field of anti-corruption enforcement, expects from companies both in terms of cooperation and remediation. That information may prove crucial for many multinational companies as U.K. enforcement continues to assert its dominance on the anti-corruption stage. See “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017) and “SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement” (Mar. 1, 2017).

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  • From Vol. 6 No.4 (Mar. 1, 2017)

    SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement

    The U.K.’s Serious Fraud Office has struggled for legitimacy in recent years, with a limited number of enforcement actions under its belt and a shrinking budget. But its recent settlement with Rolls-Royce has established it as a force to be reckoned with in global anti-corruption enforcement. “The settlement catapults the SFO into the Premier League of global anti-bribery law enforcement,” said London-based Barry Vitou, head of Pinsent Masons’ corporate crime team. But is it sending mixed messages about the value of cooperation and self-reporting? For more on the settlement, see “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017).

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  • From Vol. 6 No.3 (Feb. 15, 2017)

    Rolls Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption

    Rolls Royce’s recent massive settlement with U.S., U.K. and Brazilian authorities is a stark reminder of the anti-corruption risks associated with intermediaries, agents and fixers when negotiating contracts with state-owned entities. Commissions paid by Rolls Royce to its agents – including notorious oil-and-gas “solutions” provider Unaoil – often were eventually passed on to foreign officials to close deals, netting Rolls Royce a global settlement for hundreds of millions of dollars. In this first article discussing the case, we look at the bribes Rolls Royce paid, how its compliance program failed to prevent them and what companies can do to make sure that commissions paid to agents are not used improperly. In a second article, we will look at the implications for cooperative U.S. and U.K. enforcement and what the SFO is looking for in terms of cooperation and remediation. See “Bribery Act Experts Discuss the Impact of Brexit, DPAs and Other U.K. Developments” (Jul. 13, 2016).

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  • From Vol. 5 No.24 (Dec. 7, 2016)

    Embraer Global Settlement Presages a New Paradigm in International Enforcement and Next-Level Compliance

    Embraer, the world’s largest manufacturer of mid-size jets, recently settled FCPA allegations. The settlement is a striking example of how the SEC and DOJ are working with foreign governments all over the world to investigate and prosecute corruption in a coordinated manner. The case also illustrates how companies need a next level of compliance beyond basic policies and procedures to prevent individuals from finding ways around internal controls. In this, our second article analyzing Embraer’s historic settlement, we discuss the enforcement implications as well as the compliance takeaways of the case. For details on the facts underlying the case and the terms of the settlement see our companion article “Embraer Uses Sleight-of-Hand Payments to Third-Party Agents to Sell Planes Around the World, Landing It More Than $200M in U.S. Fines” (Nov. 9, 2016).

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    Embraer Uses Sleight-of-Hand Payments to Third-Party Agents to Sell Planes Around the World, Landing It More Than $200M in U.S. Fines

    Embraer, one of Brazil’s leading exporters and the world’s largest manufacturer of mid-size jets, has settled bribery allegations with both the SEC and DOJ related to its use of third-party agents in transactions spanning the globe. According to Karlis Novickis, a regional compliance officer at Whirlpool LatAm based in São Paolo, the fines in this case show that compliance “is one of the best investments” a company can make. In this article, we synthesize the SEC and DOJ’s divergent papers to provide a coherent narrative of how Embraer employees skirted the company’s internal controls. In a companion article in a future issue, we will look at the compliance and enforcement implications of the settlement. See “Regional Risk Spotlight: Giovanni Falcetta of TozziniFreire Talks Anti-Corruption in Brazil Beyond the Petrobras Scandal” (Mar. 23, 2016). 

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    Och-Ziff’s Settlement Offers Five Compliance Lessons for Hedge Fund Managers and Private Equity Investors 

    Och-Ziff’s recent settlements with both the SEC and DOJ for violations of the FCPA should be a wakeup call for hedge fund managers and private equity investors. “Although the enforcement authorities have historically focused their FCPA attention elsewhere, the DOJ and SEC are increasingly turning their attention to sophisticated financial firms,” Jason Jones, a partner at King & Spalding, explained. “Hedge funds, private equity firms, banks, and other firms often focus the majority of their compliance resources on anti-money laundering and sanctions programs, but anti-corruption must not be neglected,” he said. The details of the case, along with the terms of the company’s settlement, offer five key compliance lessons for firms in this industry. For details on the facts underlying the case and the terms of the settlement see our companion article “Dirty Dealings in Africa Result in SEC and DOJ Settlements for Och-Ziff and Two Executives” (Oct. 26, 2016).

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  • From Vol. 5 No.21 (Oct. 26, 2016)

    Dirty Dealings in Africa Result in SEC and DOJ Settlements for Och-Ziff and Two Executives

    After months of speculation, the SEC and DOJ recently announced a settlement with Och-Ziff Capital Management and two of its employees for more than $400 million. The settlement papers indicate that Och-Ziff’s varied dealings in Africa – both in terms of procuring investors and making private equity investments – were characterized by a nonchalant attitude toward compliance. The company routinely worked with intermediaries with questionable backgrounds and known ties to government officials. Once deals were made, little effort was put into ensuring that funds were spent appropriately. According to a team of attorneys at MoloLamken, the settlement is a “significant development” in both the FCPA and hedge fund worlds. “For a number of years, DOJ and the SEC have indicated that their FCPA enforcement efforts are focused on private equity and hedge funds,” they said, “but the Och-Ziff settlement is the first major move in that direction. And it’s a significant one: the case represents one of the largest FCPA settlements in history against one of the world’s largest hedge funds.” A companion article in our next issue will distill further compliance takeaways from the case. See “Addressing Corruption Risks and Compliance Strategies for Co-Investors (Part One of Two)” (Jun. 24, 2015); Part Two (Jul. 8, 2015). 

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  • From Vol. 5 No.17 (Aug. 31, 2016)

    In Second DPA, SFO and U.K. Court Focus on Cooperation, Self-Reporting and Compliance

    Recently a U.K. court approved the second Serious Fraud Office application for a DPA. The identity of the counterparty remains confidential but is understood to be a small to medium-sized U.K. entity wholly owned by a U.S. corporation. The first DPA which was approved by the same judge in November 2015, was with Standard Bank, a regulated institution that settled for what could be perceived as a more stringent penalty. More recently, financially troubled Sweett Group was prosecuted after failing to cooperate in the SFO’s investigation. In a guest article, Elizabeth Robertson, a partner at Skadden located in London, discusses the key features of the most recent DPA and examines the differences between it, the Standard Bank case and the Sweett Group case offering insights on anti-corruption enforcement in the U.K. See “Lessons From the U.K. Sweett Group Prosecution” (Mar. 23, 2016).

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  • From Vol. 5 No.12 (Jun. 15, 2016)

    SFO’s Alford Discusses Enforcement Priorities, Deferred Prosecution Agreements and Corporate Criminal Liability

    In light of events such as the first convictions under the U.K. Bribery Act and the first British corporate deferred prosecution agreement, how does the U.K.’s Serious Fraud Office (SFO) see its role on the domestic and international law enforcement stage? In remarks at the American Conference Institute’s recent New York Conference on the FCPA, Stuart Alford, QC, the Head of Division of the SFO, explained the operations and priorities of the SFO, with emphasis on its role in anti-corruption enforcement, deferred prosecution agreements and corporate criminal liability. See also “U.K. Anti-Corruption Summit Brings Criticism and a Touch of Déjà Vu” (Jun. 1, 2016).

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  • From Vol. 5 No.8 (Apr. 20, 2016)

    Dan Newcomb Discusses the Unusual Second Extension of Biomet’s DPA

    In a rare move, the Department of Justice has extended Biomet’s deferred prosecution agreement for the second time in two years. In March 2015, days before the company’s March 2012 deferred prosecution agreement was set to expire, Biomet announced that the DOJ had informed the company that Biomet’s DPA and monitor appointment had been extended for an additional year. On March 25, 2016, the company announced a second extension, disclosing that the DOJ and SEC are continuing to investigate the company’s activities in Brazil and Mexico as well as “issues” relating to the company’s compliance program. The FCPA Report discussed the implications of this historic extension with Danforth Newcomb, counsel at Shearman & Sterling.  See previously “Learning from the Extension of Biomet’s DPA” (Apr. 1, 2015).

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  • From Vol. 5 No.4 (Feb. 24, 2016)

    Excessive Power for Junior Employees and Lavish Trips for Foreign Officials Lead to $28 Million PTC Settlement

    PTC Inc., a Massachusetts-based software company, will pay more than $28 million to settle parallel civil and criminal FCPA charges. Like FLIR and SciClone, PTC’s corruption troubles stemmed from the provision of improper travel, gifts and entertainment to government officials. By inflating the fees paid to third parties for their services, junior employees of PTC’s China-based subsidiaries created pools of money that were then used to fund sightseeing adventures. Officials visited Honolulu, San Diego, New York and Las Vegas and enjoyed guided tours, golfing and other leisure activities. The SEC also announced its first DPA with an individual in an FCPA case, agreeing to defer prosecution against Yu Kai Yuan, a former employee of a PTC subsidiary, because of the significant cooperation he provided during the SEC investigation of the company. The voluntary disclosure calculus and how to handle relationships with lobbyists were among the key compliance concerns implicated in the PTC matter. See “CEO of LAN Airlines Settles FCPA Charges With SEC Over Union Dispute” (Feb. 10, 2016).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    The Meaning of the U.K.’s First DPA

    Deferred Prosecution Agreements became available in the United Kingdom on February 24, 2014.  Some 18 months later, on November 30, 2015, Lord Justice Leveson approved the first one between the SFO and Standard Bank.  In a guest article, Nicola Howard, a Barrister at 25 Bedford Row, and Jonathan Armstrong and André Bywater, lawyers with specialist compliance practice Cordery, explain how the Deferred Prosecution Agreement process works in the U.K., detail the Standard Bank case and examine what the case means for future corporate settlements.  See “Standard Bank Fined by Both the SEC and the SFO in a Coordinated Settlement Featuring the First British DPA,” The FCPA Report, Vol. 4, No. 25 (Dec. 2, 2015).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    Standard Bank Fined by Both the SEC and the SFO in a Coordinated Settlement Featuring the First British DPA 

    A court in London has approved the Serious Fraud Office’s first DPA in a case involving Standard Bank’s failure to prevent the bribery of Tanzanian officials.  The bank will pay $32.6 million in fines for alleged Bribery Act violations which allowed the bank to win a lucrative private placement deal.  The SEC announced a coordinated settlement fining Standard Bank $4.2 million for failing to disclose the same payments in violation of Section 17(a)(2) of the Securities Act.  Although there are many lessons to be learned from Standard Bank’s agreement, the matter is a “relatively small case” and the DPA is “an incredibly new animal” in the U.K., said Ryan Junck, a partner in Skadden’s London offices.  “Much of the story about when and how DPAs will be used is yet to be written,” he said.  See also “SFO Secures First Bribery Act Convictions,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 3 No.14 (Jul. 9, 2014)

    Davis Polk FCPA Experts Assess Global Anti-Corruption Trends (Part Two of Two)

    The first half of 2014 brought significant anti-corruption enforcement developments in the U.S. and abroad.  In a recent webinar, attorneys from Davis Polk & Wardwell examined the trends that are shaping the global enforcement landscape and how companies can use them to improve their compliance programs.  In this, part two of the article series covering the webinar, Davis Polk attorneys discuss international cooperation in anti-bribery investigations and changes in the FCPA enforcement climate, including the increasing use of administrative proceedings by the SEC.  In part one, they compared and contrasted three recent FCPA resolutions and discussed the enforcement climate in Asia and other parts of the world.  See also “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).

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  • From Vol. 3 No.13 (Jun. 25, 2014)

    Davis Polk FCPA Experts Assess Global Anti-Corruption Trends (Part One of Two)

    Midway through 2014, what is the state of global anti-corruption enforcement and what does it mean for multi-national companies?  In a recent webinar, attorneys from Davis Polk & Wardwell examined the trends that are shaping the enforcement and compliance landscape.  In part one of this article series, Davis Polk attorneys compare and contrast three recent FCPA resolutions and discuss the enforcement climate in Asia and other parts of the world and the accompanying compliance implications.  In part two, they discuss international cooperation in anti-bribery investigations and changes in the FCPA enforcement climate, including the increasing use of administrative proceedings by the SEC.  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).

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  • From Vol. 3 No.8 (Apr. 16, 2014)

    Three Regions, Four Settlement Tools and $108 Million: HP Entities Resolve Criminal and Civil FCPA Charges 

    Hewlett-Packard and three of its subsidiaries in Russia, Mexico and Poland have resolved FCPA charges, paying $108 million in penalties.  The schemes involved bribes to obtain contracts with various government sectors and encompass different risk areas, such as third-party payments and gifts.  The entities resolved the actions through a guilty plea (for HP Russia), a deferred prosecution agreement (for HP Poland), a non-prosecution agreement (for HP Mexico) and a cease and desist order (for HP, the California-based parent company).  The criminal fines represent discounts from the low end of the Sentencing Guidelines range, unlike the recent Marubeni case, and no compliance monitor was imposed.  For insights from HP on its current compliance program, see “Conducting Effective Anti-Corruption Due Diligence on Third Parties: An Interview with Gwen Romack, Director of Global Anti-Corruption at Hewlett-Packard Company,” Vol. 2, No. 20 (Oct. 9, 2013). 

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  • From Vol. 3 No.5 (Mar. 5, 2014)

    Deferred Prosecution Agreements Come into Force in the U.K.

    The U.K. will now be using Deferred Prosecution Agreements to resolve certain cases.  Similar to U.S.-styled DPAs, British DPAs are agreements between prosecutors and corporations that charges will be presented but not pursued, provided the organization complies with a set of agreed-upon terms and conditions.  Those terms and conditions generally involve payment of substantial fines and/or the implementation of remediation programs.  In a guest article, Elizabeth Robertson, Laura Atherton and Sasi-Kanth Mallela, partner, associate and special counsel, respectively, in K&L Gates’ London office, say that the advent of DPAs will be broadly welcomed by the business community but their application in the U.K. will not be without its controversies.   They consider some of the issues likely to arise as DPAs, which will be implemented in some significantly different ways than they are in the U.S., find their feet in the U.K.  See FCPA Corporate Settlements of 2013: Details, Trends and Compliance Takeaways,” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013).

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  • From Vol. 3 No.4 (Feb. 19, 2014)

    A Synthesis of Top Firms’ FCPA 2013 Year in Review Insights

    It is crucial for compliance professionals to be up-to-date on the latest trends and patterns in FCPA enforcement. However, a simple review of the 2013 enforcement actions may provide more questions than answers. What does the apparent decrease in FCPA prosecutions mean for businesses operating abroad? How seriously should companies take the increase in FCPA penalties? What is the significance of the SEC's first FCPA non-prosecution agreement? The FCPA Report has gathered insight from several of the year-end reports authored by the nation's top FCPA practice groups, including Shearman & Sterling, WilmerHale, Gibson Dunn, Mayer Brown, BakerHostetler and Debevoise & Plimpton, and distilled those ideas and observations into a succinct outline of the 2013 enforcement trends and patterns. See also "Assessing the Year in FCPA Enforcement and Looking Ahead," The FCPA Report, Vol. 3, No. 2 (Jan. 22, 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.24 (Dec. 4, 2013)

    SEC’s First-Ever Individual DPA Comes Amid Judge Rakoff’s Criticism of Tactics

    The SEC’s first-ever deferred prosecution agreement with an individual underscores its commitment to relying on proactive disclosure and cooperation to identify and redress violations.  On November 12, 2013, the SEC announced the DPA with Scott Herckis, a former hedge fund administrator who cooperated extensively with the agency in taking action against Berton M. Hochfeld, a hedge fund manager who stole over $1.5 million in investor assets.  Experts say the agreement with Herckis marks an expansion of the SEC’s use of DPAs, which began in 2010 with the SEC’s Cooperation Program.  The government’s use of these cooperation tools has been staunchly criticized, however, including a negative assessment by Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York.  In a recent speech, Rakoff opined that the government’s shift in focus in redressing financial fraud from prosecuting high level individuals to prosecuting companies has led to “lax and dubious behavior on the part of prosecutors, with deleterious results.”  For more on 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.19 (Sep. 26, 2013)

    A Comparison and Examination of DOJ Compliance Program Requirements in FCPA Settlement Agreements

    While the government has not explicitly enumerated the elements of a best-in-class FCPA compliance program, it has done so implicitly, via settlement agreements and the recent FCPA Resource Guide.  The DOJ and SEC often require settling companies to implement specific compliance policies and procedures listed in Deferred Prosecution or Non Prosecution Agreements.  Those requirements, most recently embodied in “Attachment C,” can be a gold mine of best practices for companies that know how to find such documents, how to read them in context, how to analogize the circumstances of the settlement to their own facts, and how provisions in the agreements have evolved over time.  The government’s view on best FCPA compliance practices is out there, but the information is disparate and difficult to digest.  To bring structure and coherence to this important area, and to enable our subscribers to act on it, The FCPA Report has undertaken a proprietary analysis of numerous settlement agreements released over the last five years.  The results of that analysis are reflected in the following chart, which presents 5 representative settlement agreements, analyzes each of the 15 compliance program provisions included in the settlement agreements, shows how those provisions have evolved over time, links to the full text of each settlement agreement and also links to articles from The FCPA Report offering a deeper dive on relevant provisions and concepts.

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  • From Vol. 2 No.15 (Jul. 24, 2013)

    U.K. Practitioners Discuss the Prospect of Enforcement Actions Under the U.K. Bribery Act, Advantages of Deferred Prosecution Agreements and Proposed Sentencing Guidelines

    What was all the fuss about?  The U.K. Bribery Act was adopted in 2010 and took effect in 2011.  Since then, there have been no prosecutions of corporations under the Act and only two formal investigations are known to be underway.  Experienced U.K. practitioners warn that the “fuss” may be proven justified soon, however, and companies should not be complacent.  In a recent webinar, experts cautioned that “enforcement is coming.”  They also discussed the availability of DPAs under the Bribery Act, the continuing utility of civil recovery orders and the proposed sentencing guidelines issued with respect to the Bribery Act.  This article summarizes the key lessons from the webinar.  See also Strategies for Implementing the U.K. Bribery Act’s Requirement of Adequate Procedures for Intermediaries,” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.8 (Apr. 17, 2013)

    Parker Drilling DPA Provides a Checklist of Policies and Procedures That the DOJ Expects to See in an FCPA Compliance Program

    Parker Drilling Company, a Houston-based, publicly traded drilling company, has resolved civil and criminal FCPA charges pursuant to a Deferred Prosecution Agreement (DPA) in which the government emphasizes specific elements of compliance programs, policies and procedures, and demonstrates its increased reliance on self-reporting mechanisms in lieu of external monitors.  See “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  The charges resulted from Parker Drilling’s authorization of payments to an intermediary that Parker Drilling knew would be used to corruptly influence the decisions of a Nigerian government panel reviewing the company’s adherence to Nigerian customs and tax laws.  In addition to discussing the facts and circumstances relevant to the granting of the DPA, and providing details of the Nigerian bribery scheme, this article includes a detailed discussion of the specific ways in which the DPA requires Parker Drilling to enhance its FCPA compliance program.  The various required enhancements serve as a checklist of what the DOJ expects to see in an FCPA compliance program – and thus serves as an important benchmark against which companies can compare their own compliance efforts.

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    Lessons from the Latest Anti-Corruption Developments in the U.K., Brazil and China

    A single-minded focus on the FCPA with a passing nod to other countries’ regulatory regimes is not enough to make a company’s compliance program first-in-class today; multinational companies must fully address an array of global anti-bribery laws in an environment of growing global enforcement and increased prosecutorial vigor.  Regulatory regimes in other countries may not be consistent with existing company compliance programs.  In a recent webinar, partners from Hogan Lovells shared their insight and experience on navigating the latest global developments in anti-bribery and corruption regulation and enforcement.  This article conveys the highlights from the discussion, focusing primarily on the anti-corruption regimes in China, the U.K. and Brazil.

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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.12 (Nov. 14, 2012)

    Landmark Early Termination of Pride International’s DPA Suggests That the DOJ May Offer Credit for Remedial Compliance Efforts Following an FCPA Prosecution

    In a surprising development, the DOJ agreed last week to end Pride International’s deferred prosecution agreement (DPA) a full year before it was set to expire.  The DOJ’s unusual decision has been viewed as a sign that the Department is willing to seriously consider and weigh a company’s compliance efforts, both before and after an investigation or prosecution.  This article discusses the Criminal Information filed in November 2010 against Pride International, the Pride International DPA, the Government’s Motion to Dismiss the Criminal Information and its Motion to Terminate the Probation.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    ABA Panel Focuses on Trends in SEC Enforcement of the FCPA and Strategies for Negotiating Civil FCPA Settlements

    The SEC’s focus on the FCPA has remained sharp, and recent changes to its policies and new enforcement tools require defense lawyers to rethink their strategies for dealing with the agency.  On October 18, 2012, a group of distinguished attorneys discussed these issues at the ABA’s Fifth Annual National Institute on the FCPA in Washington, D.C.  The panel was moderated by Cheryl Scarboro, now a partner at Simpson Thacher & Bartlett LLP after a 19-year tenure at the SEC, most recently as the first Chief of the FCPA Unit in the Division of Enforcement.  The participants discussed the latest changes to the SEC’s “neither admit nor deny” policy; the viability of tack-on civil litigation; return of disgorged profits to victims or victim countries; negotiation of the disgorgement figure with the SEC; and the SEC’s use of non-prosecution agreements and deferred prosecution agreements.  This article provides highlights from the panel discussion, with particular emphasis on strategies useful to companies and counsel in responding to the SEC during investigations and in negotiating with the agency in settlement proceedings.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    In Recent Remarks, Assistant Attorney General Lanny Breuer Discusses Deferred Prosecution Agreements, Civil Forfeiture and FCPA Enforcement against Individuals

    Lanny Breuer, head of the DOJ’s Criminal Division, has given two speeches in the last few weeks about the FCPA.  (The DOJ’s Fraud Section is responsible for enforcement of the criminal provisions of the FCPA.)  See also “Chief of the DOJ’s Criminal Division Defends the Use of Deferred Prosecution Agreements in FCPA Enforcement Actions,” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012).

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    Chief of the DOJ’s Criminal Division Defends the Use of Deferred Prosecution Agreements in FCPA Enforcement Actions

    In a recent speech, Lanny Breuer, Chief of the DOJ’s Criminal Division (responsible for criminal enforcement of the FCPA) argued that deferred prosecution agreements, increasingly common in his department’s FCPA enforcement actions, have resulted in “far greater accountability for corporate wrongdoing – and a sea change in corporate compliance efforts.”

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  • From Vol. 1 No.2 (Jun. 20, 2012)

    Data Systems and Solutions LLC Enters into Deferred Prosecution Agreement with the DOJ, Paying $8.82 Million in Fines for Bribing Foreign Officials in Lithuania

    Data Systems & Solutions LLC (DSS), a Virginia-based company that provides design, installation, maintenance and other services at nuclear and fossil fuel power plants, has agreed to a deferred prosecution agreement (DPA) with the DOJ.  This article explains the bribery scheme, DSS’s cooperation with the government and the penalty imposed.  Also, this article highlights two new mergers and acquisitions-related provisions included in this DPA that have not been present in recent DPAs.

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