The FCPA Report

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

Articles By Topic

By Topic: Business Nexus

  • From Vol. 5 No.2 (Jan. 27, 2016)

    Hiring Practices and FCPA Compliance in the Wake of the BNY Settlement (Part Two of Two)

    Adding to the list of creative ways to accomplish bribery, the SEC’s recent settlement with BNY demonstrated that, at least in the SEC’s opinion, a job can be a “thing of value” that can lead to an FCPA violation. The government made it clear that to avoid such violations, any robust anti-corruption program must integrate policies about hiring practices. Going forward, companies can use the settlement documents as a helpful roadmap for updating their compliance program to meet the SEC’s maturing expectations. The FCPA Report spoke to a number of experts in the field (including the chief compliance officer of a multinational company) who together identified three key aspects of a hiring policy and discussed how companies should be updating their training program. In the first article in this two-article series, we considered the expansion of FCPA liability and its broader implications for FCPA enforcement. See “BNY Mellon Settles Nepotism-Related Charges for $14.8 Million” (Aug. 19, 2015).

    Read Full Article …
  • From Vol. 5 No.1 (Jan. 13, 2016)

    Hiring Practices and FCPA Compliance in the Wake of the BNY Settlement (Part One of Two)

    In August of 2015, the SEC settled its first FCPA case based solely on hiring relatives of foreign officials. Stemming from a series of investigations of hiring practices at banks, the settlement with BNY Mellon illuminated how the SEC views the FCPA and the types of practices that can violate it. In the wake of this first for the SEC, companies may need to reassess and retool their compliance programs. In this installment of our two-part article series, we discuss how the BNY settlement clarifies what can be an FCPA violation. The second part will explore what changes companies should be making to their hiring policies, compliance programs and training curricula. See “BNY Mellon Settles Nepotism-Related Charges for $14.8 Million” (Aug. 19, 2015).

    Read Full Article …
  • From Vol. 4 No.24 (Nov. 18, 2015)

    Navigating the Vagaries of the FCPA’s Business-Nexus Requirement

    For a payment to a foreign official to violate the FCPA, it must be made for the purpose of obtaining or retaining business.  This “business-nexus” requirement limits, in theory, the types of payments that violate the FCPA.  In practice, however, the government has taken a broad view of the business nexus required for an FCPA violation and judicial direction has been vague.  In a guest article, Robert J. Cleary and Celia V. Cohen, a partner and associate, respectively, at Proskauer Rose, detail the little guidance available on the business-nexus requirement and offer concrete advice on how practitioners and companies can negotiate with the government when a case involves a questionable business nexus.  See also “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013); Part Two, Vol. 2, No. 5 (Mar. 6, 2013); Part Three, Vol. 2, No. 6 (Mar. 20, 2013).

    Read Full Article …
  • From Vol. 1 No.6 (Aug. 22, 2012)

    Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law and author of the popular blog the FCPA Professor.  He has testified before Congress and written extensively about FCPA issues.  Professor Koehler previously was Assistant Professor of Business Law in the College of Business at Butler University, and before that was an attorney at Foley & Lardner LLP, where he conducted FCPA investigations on behalf of companies, negotiated resolutions to FCPA enforcement actions with government enforcement agencies and advised clients on FCPA compliance and risk assessment.  In the first part of our interview, which is included in this issue of The FCPA Report, Professor Koehler spoke about the long tail on FCPA violations and the “gray cloud” that hangs over companies once they self-report, and he questioned whether companies should self-report at all.  See also “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  He also shared compliance advice in light of recent enforcement trends relating to facilitation payments, the “obtain or retain business” element of the statute and the definition of foreign officials.  In addition, Professor Koehler discussed compliance lessons arising out of the unique way the FCPA is enforced and the relative lack of judicial scrutiny of the statute.

    Read Full Article …