The FCPA Report

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

Articles By Topic

By Topic: Guidance

  • From Vol. 6 No.5 (Mar. 15, 2017)

    DOJ’s Guidance Shows That Compliance Programs Still Matter

    Critical comments of the FCPA by President Trump, coupled with a general policy position of lessening regulatory oversight of U.S. companies, have caused speculation as to whether the new administration will curtail FCPA enforcement. Recently, the DOJ Fraud Section quietly released this administration’s first guidance setting out its position on the contours of an effective corporate compliance program. In a guest article, Paul Hastings partners Tara Giunta and Palmina Fava, and their associate Brian Wilmot, explain that this guidance does not signal any easing of enforcement – rather, the Fraud Section is signaling an incisive review of companies and their compliance programs, functions, resources and effectiveness. See “Top FCPA Officials Encourage Strong Compliance Programs and Remediation, the Defense Bar Responds” (Dec. 21, 2016).

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  • From Vol. 5 No.5 (Mar. 9, 2016)

    Travel and Entertainment Corruption Risks: Five Hallmarks of an Acceptable Hospitality Expenditure (Part One of Three)

    Flying clients to visit factories, putting them up in hotels while they attend meetings and picking up the tab for their dinner can all be regular and acceptable business activities. But when those clients are officials of foreign governments, companies must tread carefully to ensure that genuine business expenses don’t become impermissible bribes. The abuse of travel and entertainment expenses was one of the first areas of focus for the government when it escalated FCPA enforcement over a decade ago and now many companies have established T&E compliance programs. However, as recent settlements involving T&E demonstrate, companies cannot afford to become complacent. This article, the first in a three-part series, sketches in the contours of the boundary between acceptable entertainment and corruption and identifies five hallmarks of appropriate travel and entertainment. Subsequent articles will address what a solid travel and entertainment policy should look like and how companies can actively monitor their T&E programs to prevent fraud and corruption. See also “A Guide to Detecting and Preventing Expense-Reimbursement Fraud (Part One of Three)” (Apr. 16, 2014); Part Two (Apr. 30, 2014); and Part Three (May 14, 2014).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Brockmeyer and Stokes Offer Four Benefits of Cooperation and Four Ways Companies Can Go Wrong in Their Internal Investigations

    As government enforcers become increasingly sophisticated about business practices and bribery – and adjust their strategies accordingly – companies can be left befuddled as to what is expected from them.  In our previous issue, The FCPA Report analyzed the DOJ and SEC’s changing approaches in detail based on the “Year in Review” panel at this year’s ACI FCPA conference.  During that panel Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, also clarified their expectations for companies and their compliance programs.  The FCPA Report spoke to several anti-corruption defense experts to find out whether these expectations are reasonable and how companies can best meet them.  For coverage of last year’s panel, see “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014); and “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    Top FCPA Enforcers Discuss Evolving and Diverging Enforcement Approaches and the Defense Bar Responds

    International cooperation and whistleblowers are changing the government’s investigations and resolutions according to top FCPA enforcers.  Due to these changes – and the ever-increasing sophistication of both the SEC and DOJ – the agencies’ goals, strategies and tactics continue to evolve and diverge based on their statutory remits.  At this year’s ACI FCPA conference, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, distilled the government’s enforcement priorities in their “Year in Review” discussion, and The FCPA Report spoke to several anti-corruption defense experts for their reactions.  Stokes and Brockmeyer also discussed what they expect from compliance programs as well as the incentives they offer companies to self-report, cooperate and remediate, which will be discussed at length, with input from the FCPA bar, in our next issue.  For coverage of last year’s panel see “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014) and “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 3 No.17 (Aug. 20, 2014)

    Comparing and Contrasting Three FCPA Experts’ Advice on Negotiating FCPA Settlements

    The FCPA Report recently published a series of interviews with FCPA experts Larry Urgenson, Neil MacBride and John Buretta on best practices for negotiating FCPA settlements with the government.  Their views, drawn from their experience as prosecutors and defense counsel, at times converged and differed on salient points, such as the dynamic self-reporting calculus, how to avoid international double jeopardy and the best ways to make a presentation to the government.  Urgenson is a partner at Mayer Brown who has held key leadership positions at the DOJ; MacBride is a partner at Davis Polk and the former U.S. Attorney for the Eastern District of Virginia; and Buretta is a partner at Cravath, Swaine & Moore and a former top official in the DOJ’s Criminal Division who helped to author the DOJ/SEC FCPA Resource Guide.  We synthesize the highlights of their interviews.

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    Strategies for Negotiating FCPA Settlements: An Interview with John Buretta, Cravath Partner and Former Deputy Assistant Attorney General

    Understanding how to speak the government’s language is crucial when conducting FCPA settlement negotiations.  A company that fails to convince the government that it is a trustworthy, compliant organization may experience a host of negative consequences, including larger fines and the imposition of a costly compliance monitor.  In an interview with The FCPA Report, John Buretta, a partner at Cravath, Swaine & Moore, discussed the government’s perspective on the self-disclosure calculus, effective negotiation techniques, global cooperation and more.  As a top official in the DOJ’s Criminal Division (Principal Deputy Assistant Attorney General and Chief of Staff), Buretta was a primary author of the FCPA Resource Guide.  See also our previous interviews in this series on negotiating strategies: Laurence Urgenson, Mayer Brown Partner and Former DOJ Official, Vol. 3, No. 14 (Jul. 9, 2014) and Neil MacBride, Davis Polk Partner and Former U.S. Attorney, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics

    At this year’s Momentum Global Anti-Corruption Congress, Charles Cain, Deputy Chief of the SEC’s FCPA Unit and Jeffrey H. Knox, Chief of the Fraud Section of the DOJ, Criminal Division, lifted the veil on the government’s thinking in FCPA investigations.  The discussion, led by David H. Resnicoff, a member at Miller & Chevalier, covered a range of topics on the minds of FCPA practitioners and compliance officers, including the timing of voluntary self-disclosures, the kinds of cases the government may decline to pursue, effective cooperation with FCPA investigations, the role of audit committees in compliance strategies and the programmatic success of the FCPA Guidance released in 2012.  See “When Should a Company Voluntarily Disclose an FCPA Investigation?,” The FCPA Report, Vol. 3, No. 4 (Feb. 19, 2014); and “DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 2 No.24 (Dec. 4, 2013)

    Charles Duross and Kara Brockmeyer Discuss Five FCPA Enforcement Trends That Matter to Regulators: Individual Prosecutions, Administrative Proceedings, Global Coordination, Corporate Monitors and Third Parties (Part One of Two)

    At ACI’s International Conference on the Foreign Corrupt Practices Act in Washington D.C., Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided candid and detailed insight into elements of FCPA enforcement that matter to leading regulators.  They discussed the government’s charging philosophies, investigative techniques and enforcement priorities, and dispensed advice about how companies can avoid or decrease FCPA penalties.  This article summarizes the most noteworthy insights shared by Duross and Brockmeyer, and discusses the practical implications of the regulators’ points.  See also “Five Lessons from 2013 FCPA Enforcement: Transaction Monitoring, International Cooperation, Documenting Hiring Decisions, Risk Assessments and Individual Prosecutions,” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013).

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  • From Vol. 2 No.22 (Nov. 6, 2013)

    DOJ FCPA Unit’s John Buretta and Shearman & Sterling’s Dan Newcomb Offer Public and Private Perspectives on Key FCPA Challenges

    At Momentum’s recent Anti-Corruption Experts conference in New York City, John Buretta – Principal Deputy Assistant Attorney General and Chief of Staff for the Criminal Division of the DOJ – reinforced the DOJ’s emphasis on continued vigorous FCPA enforcement.  “There’s no question you will see plenty of activity this year and also next year and into the foreseeable future,” Buretta said.  “You’ll be hearing about both resolutions or charges that involve all different manner of defendants at different levels of companies in various industries.”  In addition, Buretta discussed: increasing FCPA prosecution of individual defendants; enhanced DOJ resources committed to the FCPA; increased cooperation between the SEC and the DOJ, and between the DOJ and its non-U.S. counterparts; the DOJ’s view on explaining declinations; parent-subsidiary liability; and the DOJ’s perspective on travel expenses and foreign officials.  Danforth Newcomb, Of Counsel at Shearman & Sterling LLP, engaged Buretta in a clarifying dialogue on how the DOJ’s policies, perspectives and activities should inform corporate compliance efforts.  See also “Top Government and Private FCPA Practitioners Discuss Global Enforcement, Self-Reporting, Facilitation Payments, M&A Due Diligence, Jurisdiction and NPAs,” The FCPA Report, Vol. 2, No. 11 (May 29, 2013).

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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. 2 No.5 (Mar. 6, 2013)

    Six Steps for Converting a “Paper” FCPA Compliance Program into a Pervasive Culture of Anti-Bribery Compliance (Part Two of Two)

    Breathing life into even a comprehensive compliance manual is a challenge for most companies.  How can a company ensure that its program is proactive and dynamic, and that it is working at every level of the company?  How can the company ensure that third parties are being vetted at every stage of the process?  A recent webinar featuring H. David Kotz, Director at Berkeley Research Group and former Inspector General of the SEC, and Paul Zikmund, Director of Global Ethics and Compliance at Bunge Limited, tackled these and other hard questions head on, incorporating their long and relevant experience, as well as lessons from the recently-issued FCPA Guidance.  This article, the second in a two-part series, discusses the panelists’ advice regarding the best path forward after a risk score is assigned to a third party, including details about a “boots-on-the-ground” approach to due diligence; ways to monitor third parties on an ongoing basis; compliance advice for smaller companies; and how to incentivize employees to report complaints internally before going to the government.  The first article in the series discussed how the hypotheticals in the Guidance provide insight into the government’s enforcement strategy and what the “flavor of the month” FCPA cases are; six ways to ensure an FCPA compliance program is best-in-class; and integral steps to take when conducting risk assessments of third parties.  See “Six Steps for Converting a ‘Paper’ FCPA Compliance Program into a Pervasive Culture of Anti-Bribery Compliance (Part One of Two),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013).

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  • From Vol. 2 No.4 (Feb. 20, 2013)

    Six Steps for Converting a “Paper” FCPA Compliance Program into a Pervasive Culture of Anti-Bribery Compliance (Part One of Two)

    Recent enforcement actions have highlighted the bribery risk inherent in retaining third parties in foreign countries.  To adequately address such risks, companies need more than a compliance manual sitting on the shelf – they need a culture of compliance that pervades the organization.  Drafting a thorough and customized compliance manual is the first step in this process.  But how can companies bring a complete compliance program to life?  A recent webinar tackled this hard question head on, incorporating the long and relevant experience of the webinar participants, as well as lessons from the recently-issued FCPA Guidance.  This is the first article in a two-part series summarizing the key takeaways from the webinar.  This article discusses: how the hypotheticals in the Guidance provide insight into the government’s enforcement strategy and what the “flavor of the month” FCPA cases are; six ways to ensure an FCPA compliance program is best-in-class; and integral steps to take when conducting risk assessments of third parties.  The second article will address: steps to take after a risk score is assigned to a third party, including details about a “boots-on-the-ground” approach; ways to monitor third parties on an ongoing basis; compliance advice for smaller companies; and how to incentivize employees to report complaints internally before going to the government.  See also “Five Themes for General Counsel to Monitor with Respect to Dodd-Frank Whistleblowers and the FCPA,” The FCPA Report, Vol. 1, No. 9 (Oct. 3, 2012).

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Designing Effective FCPA Compliance Programs and Monitoring Third Parties After the Guidance: An Interview with H. David Kotz, Michael Volkov and Paul Zikmund

    Relationships with third parties are a constant pressure point for companies trying to comply with the FCPA.  How should the recently-issued FCPA Resource Guide change a company’s strategy for dealing with third parties, during and after initial due diligence?  On February 6, 2013, LeClairRyan, Berkeley Research Group (BRG) and The FCPA Report will host a complimentary CLE-eligible webinar that will address this and other pressing regulatory questions.  The webinar, entitled “After the Guidance: Designing Effective Compliance Programs and Monitoring Third Parties,” will feature three FCPA experts: former SEC Inspector General and current BRG Director H. David Kotz; LeClairRyan Partner Michael Volkov; and Paul Zikmund, Director of Global Ethics and Compliance at Bunge Limited.  Rebecca Hughes Parker, Editor-In-Chief of The FCPA Report, will moderate the webinar.  Topics to be covered include the FCPA Resource Guide’s specific requirements for compliance programs; how to review and enhance compliance programs to get maximum credit; and best practices for monitoring third parties in a cost-effective manner following initial due diligence.  To register for the webinar, click here.  As a preview of the webinar, The FCPA Report interviewed the three participants on topics including: the elements of an effective third party risk assessment and the categories it should include; the utility of open source databases; common mistakes companies make when designing risk assessments; streamlining risk assessments and due diligence; the differences between due diligence for third parties and for M&A transactions; and effective ways to monitor third parties after they are “on board.”  An edited transcript of our interview is included in this issue of The FCPA Report.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Top Practitioners Analyze the DOJ & SEC FCPA Guidance (Part Two of Two)

    On November 14, 2012, the SEC and DOJ jointly issued long-awaited guidance on the FCPA (Guide or Guidance), spurred in part by the Organisation for Economic Cooperation and Development’s recommendation, and business pressures for more clarity about the FCPA and the government’s enforcement of it.  This article continues our extensive coverage of the Guidance and the practical implications of it, offering concrete suggestions to anti-bribery professionals on avoiding, handling and settling enforcement actions, conducting internal investigations and executing mergers and acquisitions.  This article – the second in a two-part series – uses input from leading FCPA experts to extract practical lessons from the Guide, including what it says about compliance programs and internal controls; whether the Guide sheds any light on what constitutes a facilitation payment and who constitutes a foreign official, and whether those distinctions are important; the Guide’s insight on third-party due diligence, successor liability and statute of limitations issues; and whether the Guide affects the self-reporting calculus.  The first article in this series addressed the backstory of the Guide and why it was issued; how companies and their counsel can use the Guide and the hypotheticals included in it; advice that can be distilled from the Guide on gifts, travel and entertainment; deficiencies in the Guide and which areas of the law remain unclear; and the highlights and lowlights of the Guide’s declination section.  See “Top Practitioners Analyze the DOJ & SEC FCPA Guidance (Part One of Two),” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Chamber of Commerce Speaks Out About the FCPA Guidance

    Some FCPA practitioners have observed that the recently issued Resource Guide to the U.S. Foreign Corrupt Practices Act (Guide or Guidance) directly responded to criticism of the FCPA by the Chamber of Commerce (Chamber).  See “Top Practitioners Analyze the New FCPA Guidance (Part One of Two),” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).  The Guidance did not formally amend the FCPA and is non-binding, but it did provide hypotheticals and some clarity on application and enforcement of the statute.  Was the Chamber satisfied?  The FCPA Report recently had a far-reaching discussion with Harold Kim, Executive Vice President of the Chamber’s Institute for Legal Reform (ILR), about the Guidance.  Kim has general oversight of many of the Chamber’s federal and state initiatives relating to legal reform.  In our interview, Kim discussed: the Chamber’s FCPA advocacy efforts; its reaction to the Guidance, including the Chamber’s opinion of the Guidance relating to parent-subsidiary and successor liability; gifts and hospitality; declination decisions and compliance programs; areas where the Guidance fell short; and steps the ILR will take to move its agenda forward after the Guidance.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Top Practitioners Analyze the DOJ & SEC FCPA Guidance (Part One of Two)

    A large part of this issue of The FCPA Report is dedicated to explaining the practical implications of the “Resource Guide to The U.S. Foreign Corrupt Practices Act” (Guide or Guidance), jointly issued on November 14, 2012 by the DOJ and SEC.  Generally, this issue analyzes the Guidance from two perspectives: the practitioner perspective and the regulator perspective.  Specifically, this issue contains two articles from each of the two perspectives.  From the practitioner perspective, this article – the first in a two-part series – surveys a wide range of leading law and accounting firm partners focused on the FCPA on the most important issues covered by the Guidance.  In particular, this article discusses: why the Guide was created and issued; how companies and their counsel can use the Guide, including how the hypotheticals provided can inform decision-making; advice that can be distilled from the Guide on gifts, travel and entertainment; deficiencies in the Guide and which areas of the law remain unclear; and the highlights and lowlights of the declination section of the Guide.  Our multi-perspective coverage is intended to offer a 360-degree view of the Guidance and its practical import.  At a granular level, our coverage is intended to offer specific strategies to law, accounting and compliance professionals seeking to bring their compliance policies into conformity with regulator expectations.  In addition, our coverage of the Guidance is intended to offer concrete suggestions to anti-bribery professionals on avoiding, handling and settling enforcement actions, conducting internal investigations and executing mergers and acquisitions.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Comprehensive FCPA Guidance Provides a Roadmap for Companies to Reevaluate and Revise Their Compliance Policies

    On November 14, 2012, the DOJ and SEC jointly published “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (Guidance), their long-awaited and highly anticipated guidance on the FCPA.  The Guidance did not pronounce any new defenses or radically reinterpret any of the FCPA’s provisions, but it does provide useful insights into the government’s enforcement considerations and should serve as a roadmap for companies to reevaluate and revise their FCPA compliance policies.  In a guest article, Paul E. Pelletier and Aaron M. Tidman, member and associate, respectively, at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., analyze the guidance and outline how practitioners may use the guidance to update their compliance policies and procedures.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance

    On November 14, 2012, the DOJ and the SEC provided unprecedented guidance on the FCPA, releasing a Resource Guide to the Foreign Corrupt Practices Act (Guide or Guidance).  See “DOJ and SEC Jointly Issue Long-Awaited Guidance on the FCPA,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012) and the articles analyzing the Guide in this issue of The FCPA Report.  Two days later, at the American Conference Institute’s 28th Annual Conference on the Foreign Corrupt Practices Act, top officials from the DOJ and the SEC addressed the FCPA community.  In what moderator Homer Moyer, member at Miller & Chevalier Chartered, described as an “impressive exercise in transparency,” Charles Duross, the Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC and Jeffrey Knox, Principal Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, answered the legal and business community’s most pressing questions about the Guidance.  Topics addressed included: reasons for providing the Guidance; whether companies should rely on the Guidance; a company’s potential liability for the acts of a foreign subsidiary; successor liability under the FCPA; gifts and entertainment; definition of the term “foreign official”; corporate compliance programs; and corporate criminal liability.  This article relays the officials’ most noteworthy points on each of the foregoing topics.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Lanny Breuer, William Jacobson and F. Joseph Warin Discuss FCPA Guidance at ACI’s 28th National Conference on the FCPA

    On November 15, 2012, at the opening session of the American Conference Institute’s 28th Annual FCPA Conference, the conference chairs, William Jacobson and F. Joseph Warin, shared their perspectives on the recently-released joint DOJ/SEC “Resource Guide” to the FCPA (Guide or Guidance).  For additional insight from Warin, see “Five Themes for General Counsel to Monitor with Respect to Dodd-Frank Whistleblowers and the FCPA,” The FCPA Report, Vol. 1, No. 9 (Oct. 3, 2012).  Lanny Breuer, Assistant Attorney General for the Criminal Division of the DOJ, also shared his views the following day on both the Guide and the DOJ’s broad enforcement goals.  This article summarizes the remarks of Jacobson, Warin and Breuer.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Top Government Officials Discuss FCPA Enforcement Actions Initiated During 2012 and Their Significance

    On November 16, 2012, at ACI’s 28th Annual FCPA Conference, top regulators from the DOJ and SEC discussed FCPA enforcement developments in a lively panel called the “2012 FCPA Overview.”  The panelists discussed, among other things, the “message” from recent cases, including the much-touted Morgan Stanley case and the “rogue employee” defense; the benefits of self-reporting; the increased capacity of the government to detect misconduct; and whether requirements for financial reporting are expanding.  The 2012 overview panel was moderated by Lucinda A. Low, a partner at Steptoe & Johnson, LLP, and head of its FCPA practice.  It featured the SEC’s Kara Novaco Brockmeyer and the DOJ’s Charles Duross.  Brockmeyer has been Chief of the SEC’s FCPA Unit since September 2011.  Prior to that, she served as Assistant Director of its Enforcement Division and in other capacities since 2000.  Duross is Deputy Chief of the Fraud Section in the DOJ’s Criminal Division and is in charge of all of the DOJ’s FCPA cases.  He previously served as an Assistant U.S. Attorney.

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