The FCPA Report

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

Recent Issue Headlines

Vol. 1, No. 12 (Nov. 14, 2012) Print IssuePrint This Issue

  • Strategies for Preserving Data Before and During an FCPA Investigation

    Companies operating in today’s international marketplace create and distribute mass quantities of electronically stored information.  On any given day, a multinational company’s employees may write and distribute thousands of e-mails, letters, text messages, instant messages and other electronic documents.  If not handled properly, such information can create significant risks for global organizations, potential subjects of FCPA (and other) investigations.  Failing to create and implement a comprehensive data preservation policy prior to the start of an investigation or inquiry can have dire consequences, particularly if documents are inadvertently destroyed after a preservation duty develops.  Handling data correctly – both before and during an FCPA investigation – is straightforward in theory but challenging in practice.  This article provides insight on how best to deal with the mountain of data relevant to an investigation, including how a company can insulate itself proactively from the risks caused by poor data management; the importance of creating, implementing and enforcing a comprehensive data preservation plan prior to the triggering of a preservation obligation; how to determine when a preservation obligation arises; and best practices for implementing a litigation hold after the obligation has arisen.

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  • DOJ and SEC Jointly Issue Long-Awaited Guidance on the FCPA

    On November 14, 2012, the DOJ and SEC released long-awaited guidance on the FCPA in the form of a 120-page booklet called “FCPA: A Resource Guide to The Foreign Corrupt Practices Act” (Guide).  The foreword, signed by both Lanny Breuer at the DOJ and Robert Khuzami at the SEC, touts the Guide as “an unprecedented undertaking by DOJ and SEC to provide the public with detailed information about our FCPA enforcement approach and priorities.”  The Guide addresses a variety of the hot topics that many in the space have been debating, including the definition of a “foreign official” (which is currently before the Eleventh Circuit); gifts, travel and entertainment expenses; facilitation payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; as well as the various tools the DOJ and SEC have at their disposal to resolve cases.  The government also provided a fact sheet about the Guide in which it boasts that there “may [be] no other area of the law where DOJ or SEC has provided the public with as much information about our enforcement approach and priorities.”

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  • Alan Kartashkin and Dmitri Nikiforov of Debevoise & Plimpton LLP Discuss the Ins and Outs of Russian Bribery Law

    Russia and Ukraine are rich in business opportunities but rife with business challenges, especially for foreign companies operating there or considering entering those markets.  Both countries recently passed anti-bribery laws, thereby adding new layers of complexity to the global patchwork of domestic anti-bribery regimes.  In an effort to understand how the new Russian and Ukrainian laws are similar to and different from the FCPA and the U.K Bribery Act, and what companies and compliance professionals should do to navigate the new laws, The FCPA Report recently interviewed two prominent partners in Debevoise & Plimpton LLP’s Moscow office, Alan Kartashkin and Dmitri Nikiforov.  Specific topics covered in our interview included, among other things, the key differences between the FCPA, the U.K. Bribery Act and the new Russian and Ukrainian laws; how Russia or Ukraine can obtain jurisdiction over an American company; how Russian and Ukrainian enforcement agencies operate; key steps companies should take when entering the Russian and Ukrainian markets; data privacy laws in Russia and Ukraine; the implications of the Novo Nordisk case; and the future of Russian anti-corruption enforcement under the leadership of Vladimir Putin.

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  • 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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  • Managing FCPA and Other Risks After Onboarding a Third Party

    A November 7, 2012 webinar sponsored by compliance and investigative software provider Catelas Inc. (Catelas) addressed steps that companies can take to manage FCPA and other compliance risks after they have “onboarded” a third party, i.e., conducted due diligence and formalized a business relationship with that party.  The webinar was moderated by Eddie Cogan, CEO & founder of Catelas.  The other speakers were Alan Morley, president of compliance risk consulting firm Adsideo LLC, and Michael Volkov, a shareholder at LeClairRyan.  This article summarizes the key points from that presentation.

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  • 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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  • Deloitte Survey Catalogues Bribery Risks in Emerging Markets and Outlines Compliance Recommendations

    On October 29, 2012, Deloitte Financial Advisory Services LLP released its fifth annual survey on business executives’ approaches on compliance and integrity-related risks in emerging markets.  This article summarizes Deloitte’s findings, including recommendations for effective compliance and integrity-related risk management for companies operating in emerging markets.

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  • Former United States Associate Attorney General Thomas J. Perrelli Re-Joins Jenner & Block as a Partner

    Former Associate Attorney General Thomas J. Perrelli has re-joined Jenner & Block as a partner in its Washington, D.C. office.

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