The FCPA Report

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

Recent Issue Headlines

Vol. 2, No. 2 (Jan. 23, 2013) Print IssuePrint This Issue

  • Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part Two of Three)

    As companies strengthen their anti-corruption compliance programs in response to the domestic enforcement climate, they face an increasing risk of violating data privacy laws across the globe.  With law enforcement and regulators demanding information, companies find themselves trying to please two masters.  Understanding foreign data privacy laws, which often conflict with American notions of privacy, and anticipating problems before they materialize, are key to minimizing conflicts.  France in particular has a strict data privacy regime, and its laws are actively enforced.  This article, the second in a three-part series, discusses how France applies the relevant E.U. Directive; best practices for due diligence in France; and six specific steps a company should take before a need to investigate arises in France as well as other E.U. member states and other jurisdictions with similar data privacy regimes.  The third article in this series will tackle: internal investigation considerations; best practices for reviewing documents and conducting interviews; strategies for transferring data outside the E.U.; data privacy concerns when performing due diligence in the E.U.; and effective techniques for running an anti-corruption hotline in the E.U.  The first article in this series discussed data privacy laws generally and specifically as they relate to FCPA compliance, and provided information about the specifics of the E.U. data privacy regime, including: data processing principles; restrictions on data transfer; data transfer mechanisms, including the meaning of “safe harbor status,” binding corporate rules and European model clause agreements; as well as how potential new regulation can affect data collection.  See “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three),” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013).

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  • 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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  • Combating Bribery North of the 49th: A Wake-Up Call for Companies Doing Business in Canada

    Legislatures around the world have passed laws prohibiting bribery of foreign public officials.  The FCPA has received significant public attention due to a number of high-profile prosecutions.  However, the Canadian equivalent to the FCPA – the Corruption of Foreign Public Officials Act (CFPOA) – historically has not been a significant concern for businesses with a connection to Canada.  But this is changing.  In the face of mounting international pressure, Canadian authorities have sent the message that they will enforce Canadian anti-corruption laws and pursue significant penalties against companies that have provided bribes to government officials.  In a guest article, Mark Morrison and Michael Dixon, partner and associate, respectively, at Blake, Cassels & Graydon LLP, outline the substantive elements of the CFPOA with a view to comparing and contrasting Canada’s foreign anti-corruption scheme with the FCPA, and comment on Canadian enforcement trends, which have escalated in recent times, and which the authors expect will continue to increase.

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  • Specific Strategies from Goldman Sachs, Société Générale and Leading Law Firms on Conducting Cross-Border FCPA Investigations

    The considerable challenges posed by an internal FCPA investigation are compounded when that investigation involves a cross-border component – as it almost invariably does.  In-house and outside counsel in cross-border investigations must navigate legal regimes that often conflict (notably in the area of data privacy); divergent approaches to the attorney-client privilege; varying business and governance structures; and different languages and cultural mores.  Moreover, best practices in the area of cross-border investigations are not codified or neatly packaged; rather, they are a function of long and often arduous experience.  In an effort to identify and communicate some of those best practices, a seasoned panel of in-house and law firm lawyers convened in New York on January 15, 2013 for a panel hosted by Catalyst, an e-discovery services provider.  The panel was moderated by Vasu Muthyala, counsel at O’Melveny & Meyers LLP.  He was joined by Greg Andres, partner at Davis Polk & Wardell LLP; John Driscoll, Managing Director and Director of Litigation and Regulatory Affairs at Société Générale; Justin Shur, partner at Molo Lamken LLP; John Tredennick, Chief Executive Officer of Catalyst; and Christine Chi, Global Head of the Anti-Bribery Group at Goldman Sachs.  The panelists discussed, among other issues: major challenges facing companies performing cross-border investigations, including the differing notions of data privacy and attorney-client privilege in different regions and strategies for coordinating with multiple jurisdictions; tips for conducting a cross-border investigation, including when to retain outside counsel; and the dynamics of reporting, both obligatory reporting via a Suspicious Activity Report and voluntary disclosure, especially in the current whistleblower climate.

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  • JPMorgan Chase Anti-Money Laundering Consent Orders Highlight the Role of Risk in Structuring Compliance Programs

    On January 14, 2013, JPMorgan Chase Bank, N.A., JPMorgan Bank and Trust Company, N.A., and Chase Bank USA, N.A. (together, the Banks) and their parent holding company, JPMorgan Chase & Co. (JPMC), entered into a consent order with the Office of the Comptroller of the Currency of the United States (OCC) and a separate consent order with the Board of Governors of the Federal Reserve System (Fed).  The orders follow regulatory examinations of JPMC and the Banks occasioned by JPMC’s revelation that one of its traders, Bruno Iksil, known in the industry as the “London Whale,” made huge derivative bets that cost JPMC billions.  While the consent orders primarily focus on shortcomings in JPMC’s anti-money laundering efforts and how those efforts may be improved, they more generally espouse the view – apparently shared by the SEC and DOJ in their FCPA enforcement programs – that compliance efforts should be risk-based.  See “Comprehensive FCPA Guidance Provides a Roadmap for Companies to Reevaluate and Revise Their Compliance Policies,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).  This article describes the orders in detail.

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  • In Possible Sign of Escalation of Canadian Anti-Bribery Enforcement, Griffiths Energy Agrees to Pay $10.35 Million to Resolve CFPOA Charges

    In line with many predictions about the imminent increase in what has been historically weak Canadian anti-bribery enforcement, Calgary-based Griffiths Energy International Inc. has pled guilty to violating the Corruption of Foreign Public Officials Act, Canada’s analogue to the FCPA.

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  • Grant Thornton Expands Its Forensic Accounting and Investigative Capabilities in China

    Grant Thornton LLP recently announced an expansion of its forensic accounting and investigative capabilities in China with the addition of Paul Peterson, CPA, CFE, CIA, who will join the firm on January 28 as a national Forensic & Investigations director.  Peterson will be based in Shanghai.  See “Grant Thornton Webinar Highlights FCPA and U.K. Bribery Act Enforcement Trends (Part One of Two),” The FCPA Report, Vol. 1, No. 7 (Sep. 5, 2012); and “(Part Two of Two),” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012).

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  • Federal Prosecutor Glen G. McGorty Joins Crowell & Moring

    On January 7, 2013, Crowell & Moring LLP announced the addition of federal prosecutor Glen G. McGorty to its New York office.

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