The FCPA Report

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

Recent Issue Headlines

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

  • 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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  • Sullivan & Cromwell Partners Discuss Managing FCPA Risk in Cross-Border Mergers and Acquisitions

    On December 10, 2012, the Practising Law Institute (PLI) hosted a webinar entitled “FCPA Due Diligence in Cross Border Transactions.”  The presenters were Francis J. Aquila and Krishna Veeraraghavan, both partners in Sullivan & Cromwell LLP’s mergers and acquisitions group.  The PLI program provided a helpful overview of the importance and mechanics of performing anti-corruption due diligence as part of a cross-border merger or acquisition.  Among other things, the presenters discussed: successor liability issues; strategies for reducing compliance risks; how to design an FCPA due diligence plan; key questions to ask when performing pre-acquisition due diligence; what to do if due diligence uncovers corruption; how to structure a deal to avoid FCPA liability; and appropriate post-acquisition conduct.

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  • Integral Elements of Proactive and Pre-Merger Anti-Corruption Forensic Audits

    The last five years of FCPA enforcement have increased the need for comprehensive and effective compliance programs and controls designed to detect, deter and remediate instances of bribery and corruption.  A hidden jewel for some organizations is the use of the forensic audit function to help achieve these objectives.  A properly staffed and well-trained forensic audit team can provide a positive return on investment if used appropriately to satisfy the new imperative of a well-functioning compliance program.  Conducted competently, forensic audits can go a long way toward preventing violations, detecting violations (including in the merger and acquisition process), aiding the investigative and remedial process, substantiating the existence, amounts and recipients of payments and ultimately helping a company earn credit when negotiating with the government or self-reporting discovered violations.  See “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  In a guest article, Paul E. Zikmund, Global Director, Ethics and Compliance, at Bunge Limited, discusses the core elements of proactive FCPA audits, as well as the key mechanics of pre-merger anti-corruption forensic audits.

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  • 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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  • Top General Counsel Compensation Increasing Amidst Growing Pressure on In-House Law Departments

    Equilar, Inc., an executive compensation data firm, recently released a report detailing compensation levels, components and trends for General Counsels (GCs) at Fortune 1,000 companies, as well as the impact on compensation of the growing role of GCs in FCPA compliance.

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  • Recent Developments in U.K. Bribery Act Enforcement: SFO Head Green Speaks, Abbot Group Settles and Rolls-Royce Reveals Bribery Investigation

    There is growing concern that the U.K. Bribery Act 2010 (Bribery Act), which took effect in July 2011, may pose more serious risks for multinational businesses than the FCPA.  This is due, in part, to the fact that the Bribery Act extends to private as well as government bribery and does not have an exception for “facilitating payments.”  On November 13, 2012, David Green CB QC, who is the Director of the U.K.’s Serious Frauds Office (SFO), gave testimony before the Justice Committee of the House of Commons.  His testimony provides insight into how, under his direction, the SFO may be expected to approach anti-corruption efforts in general, and enforcement of the Bribery Act in particular, especially with regard to self-reporting and deferred prosecution agreements.  In other recent U.K. developments, Scotland’s Crown Office and Procurator Fiscal Service announced its first-ever civil settlement.  The government reached an agreement with Abbot Group Limited arising out of overseas corrupt payments, and Rolls-Royce plc announced that it had reported to the SFO information with respect to bribery and corruption involving overseas intermediaries.  This article highlights the key take-aways of Green’s testimony that are relevant to anti-bribery enforcement and summarizes the Abbot and Rolls-Royce matters.  For more on the mechanics of the Bribery Act, see “Finding Clarity in the New U.K. Bribery Act,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012).

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