The FCPA Report

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

Recent Issue Headlines

Vol. 1, No. 13 (Nov. 28, 2012) Print IssuePrint This Issue

  • 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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  • 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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  • 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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  • 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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  • 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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  • Nine Steps to Take When Initiating an Internal FCPA Investigation

    On November 14, 2012, a panel sponsored by compliance software provider Catelas Inc. (Catelas) discussed the considerations involved in investigating bribery related compliance incidents and other wrongdoing.  The panel was a follow up to Catelas’ November 7, 2012 panel about monitoring third-party business relationships with a view to assuring FCPA compliance and managing other risks.  See “Managing FCPA and Other Risks After Onboarding a Third Party,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012).

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