The FCPA Report

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

Recent Issue Headlines

Vol. 2, No. 4 (Feb. 20, 2013) Print IssuePrint This Issue

  • How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three)

    Looming large in every FCPA settlement negotiation with the government is the reporting requirements the company will be subject to going forward.  Historically, companies had only two options at the negotiating table – plead for no future reporting to be required or accept an onerous and expensive multi-year compliance monitorship.  Thanks, in part, to the increased sophistication of many in-house compliance programs, the government is embracing new and creative reporting obligations, leaving room for companies to negotiate tailored solutions.  How can companies negotiate an agreement that meets the government’s need to decrease recidivism while limiting the uncertainty, invasiveness and expense of extensive reporting requirements?  This article, the first in a three-part series, examines precedent, practice and trends in post-settlement FCPA reporting obligations; discusses the shift to less traditional forms of reporting; explains the process by which reporting obligations are created; and describes the mechanics of the most intrusive types of reporting: traditional monitorship and self-reporting.  The second article in this series will discuss real-world examples of innovative reporting requirements and recommend specific strategies companies can use to negotiate the most beneficial reporting requirements possible.  The third article will provide advice on choosing the best possible monitor and tactics for limiting the expenses of a monitorship.

    Read full article …
  • Six Steps for Converting a “Paper” FCPA Compliance Program into a Pervasive Culture of Anti-Bribery Compliance (Part One of Two)

    Recent enforcement actions have highlighted the bribery risk inherent in retaining third parties in foreign countries.  To adequately address such risks, companies need more than a compliance manual sitting on the shelf – they need a culture of compliance that pervades the organization.  Drafting a thorough and customized compliance manual is the first step in this process.  But how can companies bring a complete compliance program to life?  A recent webinar tackled this hard question head on, incorporating the long and relevant experience of the webinar participants, as well as lessons from the recently-issued FCPA Guidance.  This is the first article in a two-part series summarizing the key takeaways from the webinar.  This article discusses: how the hypotheticals in the Guidance provide insight into the government’s enforcement strategy and what the “flavor of the month” FCPA cases are; six ways to ensure an FCPA compliance program is best-in-class; and integral steps to take when conducting risk assessments of third parties.  The second article will address: steps to take after a risk score is assigned to a third party, including details about a “boots-on-the-ground” approach; ways to monitor third parties on an ongoing basis; compliance advice for smaller companies; and how to incentivize employees to report complaints internally before going to the government.  See also “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).

    Read full article …
  • How Can Anti-Money Laundering Laws Affect an FCPA Compliance Program? An Interview with Former FinCEN Director James H. Freis, Jr. (Part Two of Two)

    Though motivated by different statutes, anti-money laundering compliance programs and FCPA compliance programs deal with related risks.  Anti-money laundering laws are also integrally related to FCPA charges, and prosecutors use them frequently in FCPA enforcement actions across industries and geographies.  The FCPA Report recently spoke with the nation’s former top anti-money laundering regulator, James H. Freis, Jr., about a range of issues, including the role anti-money laundering laws play in FCPA cases, how financial regulators are working together across the globe to combat corruption and the corruption challenges facing the gaming industry in particular.  In this, the second part of our interview, Freis discussed, among other things: the connection between anti-bribery laws and broader financial reforms around the globe; how financial institutions can integrate their AML and FCPA compliance programs; the similarities and differences between Politically Exposed Persons and foreign officials; and the importance of high-profile FCPA enforcement.  In the first article in this series, Freis discussed, among other things: what companies should focus on when conducting corruption and anti-money laundering risk assessments and audits; how the DOJ and SEC work with FinCEN on corruption cases; and details regarding the formation, operation and future of the Egmont Group, a 130-member organization of international financial intelligence units.  See “Former FinCEN Director James H. Freis, Jr. Discusses the Intersection between Anti-Money Laundering and Anti-Corruption Law (Part One of Two),” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

    Read full article …
  • One U.S. District Court in New York Affirms Broad Jurisdictional and Temporal Reach of the FCPA While Another Dismisses FCPA Case for Lack of Contacts

    Two federal judges sitting in the Southern District of New York recently reached different conclusions regarding how far the FCPA reaches.  Together, the two decisions provide legal analysis relevant to corporate decision-making on: the role of e-mail and computer servers in conferring jurisdiction over FCPA defendants; the interaction between preparation of SEC filings and jurisdictional questions; the level of authority over a bribe or cover up required to trigger jurisdiction; statute of limitations questions; and other topics.  This article analyzes both decisions.

    Read full article …
  • How Can Individual Defendants Use Strategic Cooperation to Mitigate FCPA Sentences?

    Individuals at risk for FCPA charges can benefit from approaching and cooperating with the government as early as possible.  Working from recent DOJ sentencing memoranda, this article focuses on how actual and potential individual FCPA defendants (and their counsel) can approach cooperation in a way that is likely to lead to reduced sentences.  In particular, this article focuses on the content, timing and required utility of cooperation.

    Read full article …
  • How FCPA Transaction Monitoring Software Works

    To comply with the FCPA and other anti-corruption laws, companies operating multi-nationally must closely monitor the actions of their employees, agents and third-party partners for indications of potential bribery.  This is a costly proposition for any company, but especially for smaller companies that lack the human resources necessary to perform comprehensive anti-corruption reviews.  Enter technology.  Relatively recent software innovations allow companies to perform automated FCPA transaction monitoring, thereby enabling companies to track substantially the same number of transactions with fewer people and equal or greater effectiveness.  The FCPA Report recently had an extensive conversation regarding automated transaction monitoring with Patrick Taylor, CEO of Oversight Systems, a company that provides automated transaction monitoring solutions.  In our interview, Taylor explained the fundamentals of automated transaction monitoring; outlined what types of companies should consider transaction monitoring; and explained the benefits of implementing an automated system.

    Read full article …
  • Paul Weiss Adds Alexandra Walsh as a Litigation Partner in Washington, D.C.

    Alexandra (Alex) Walsh recently joined Paul, Weiss, Rifkind, Wharton & Garrison LLP as a partner in its litigation department, resident in Washington, D.C.  Her practice will focus on FCPA-related work, white collar criminal litigation, civil litigation, internal corporate investigations and appellate litigation.

    Read full article …
  • Gary Grindler Rejoins King & Spalding

    On February 4, 2013, King & Spalding announced that Gary G. Grindler, the former acting deputy attorney general of the U.S. Department of Justice, the agency’s second highest-ranking official, and chief of staff to Attorney General Eric Holder, has rejoined as a partner in the special matters and government investigations practice in the firm’s Washington, D.C. office.

    Read full article …