The FCPA Report

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

Recent Issue Headlines

Vol. 1, No. 6 (Aug. 22, 2012) Print IssuePrint This Issue

  • Identifying and Mitigating Anti-Bribery Risk in Journalism and Newsgathering

    “[I]t’s one of the Commandments of Good Journalism: Thou shalt not pay for information.  Only the tabloids, of both the supermarket and TV variety, regard news as a tradable commodity,” according to an article in the American Journalism Review.  Unfortunately, those Commandments are not always followed.  Generally, journalists pride themselves on not paying or giving favors for interviews or access to information.  But sometimes journalists feel pressured to do so.  When they do, such actions may not just implicate journalistic ethics, but the FCPA and laws like it, with harsh consequences such as penalties, disgorgement of profit (perhaps advertising revenue) and possible loss of FCC licenses.  Bribery in journalism may work the other way too.  It can be the journalists – foreign officials in many countries where the media is state-owned – taking the bribe from companies who want media coverage, creating liability for non-media companies.  Corruption in newsgathering may not be intuitive, and in today’s competitive media environment, it can be difficult to prevent.  This article examines (with expert input from Dan Rather and others) corruption risks newsgathering can pose; situations where journalists and their employers can, and have, faced potential FCPA violations; compliance policies companies have implemented; and seven measures media companies can take to improve their compliance programs and mitigate corruption risk.

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  • Four Ways to Minimize Multi-Jurisdictional Risk When Settling FCPA Charges with the DOJ or SEC

    It used to be that a corporation that wished to resolve claims of anti-corruption violations simply had to negotiate a settlement with U.S. authorities.  Until recently, most countries have been content to leave the United States to enforce the FCPA without venturing into the anti-corruption waters themselves.  Yet recent multi-jurisdictional developments in anti-corruption law – such as an increase in the enforcement of anti-corruption laws by foreign countries – have complicated companies’ abilities to settle anti-corruption investigations with certainty and predictability.  Indeed, foreign investigations following DOJ and SEC settlements have been increasing steadily, including investigations arising out of the Siemens, Panalpina and Bonny Island FCPA settlements.  This enforcement trend highlights the need for careful strategic planning, on a multi-jurisdictional level, for handling anti-corruption investigations and settlements.  In a guest article, Charles F. Smith and Gary DiBianco, both partners at Skadden, Arps, Slate, Meagher & Flom LLP, and Brittany Parling, a Skadden associate, discuss trends in multi-jurisdictional enforcement of anti-corruption laws and lay out four factors companies should consider when negotiating and evaluating settlements in a multi-jurisdictional context.

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  • 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.

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  • New Delhi Television Action against Nielsen Highlights the Ability of Private Lawsuits to Serve as De Facto FCPA Whistleblower Complaints

    New Delhi Television Limited (NDTV) has filed a mammoth, 194 page complaint in New York State Supreme Court against principal defendants Nielsen Holdings N.V. and The Nielsen Company (together, Nielsen), Kantar Media Research PVT LTD. (Kantar), and their Indian joint venture, TAM Media Research Private Limited (TAM).  This suit appears to be the culmination of long-running efforts by plaintiff NDTV to challenge the reliability of television viewership data produced by defendant TAM.  NDTV claims that, to NDTV’s detriment, TAM’s ratings have been skewed by corruption and bribery for many years.  Although primarily a negligence and breach of contract suit, NDTV asserts one claim for “negligence per se” against Nielsen arising out of Nielsen’s alleged violation of the FCPA.  NDTV claims that many of the television stations that allegedly benefited from the corrupted ratings are owned by Indian politicians.  It claims total damages of more than $800 million.  This article summarizes the background of the dispute and NDTV’s FCPA theory of recovery, and highlights the manner in which private lawsuits may serve as de facto FCPA whistleblower complaints.

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  • In Distributor Margin Case with the “Potential for Bribery,” Oracle Corporation Settles FCPA Books and Records Charges with the SEC for $2 Million

    On August 16, 2012, the SEC announced that it had reached an agreement with California-based Oracle Corporation, the world’s third largest software company, relating to charges that Oracle failed to audit payments to vendors in India.  No parallel DOJ settlement has been announced, and the government put forward no allegations of bribery.

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  • Prominent DOJ Lawyer Robertson Park Joins Murphy & McGonigle in D.C.

    On August 20, 2012, Murphy & McGonigle, P.C. announced that Robertson Park has joined the firm as a partner in its Washington, D.C. office.  Park is a former Assistant Chief in the Fraud Section of the Criminal Division.

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