The FCPA Report

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

Recent Issue Headlines

Vol. 2, No. 5 (Mar. 6, 2013) Print IssuePrint This Issue

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

    For many years, the world of post-settlement FCPA reporting requirements was black and white – companies were either required to submit to a multi-year independent compliance monitor or the settlement contained no reporting obligations at all.  Today, as companies develop innovative reporting requirements to satisfy the government, solutions are often found in the gray area.  Finding a customized solution to reduce potentially onerous reporting requirements is crucial, and this article, the second in a three-part series, provides five practitioner-approved strategies to do just that.  In addition to advising on negotiating post-settlement reporting requirements with the government, this article also discusses real-world examples of innovative reporting requirements.  The third article in the series will describe how to choose the best possible monitor and outline strategies for limiting the expenses of monitorship.  The first article in the series examined precedent, practice and trends in post-settlement FCPA reporting obligations; discussed the shift to less traditional forms of reporting; explained the process by which reporting obligations are created; and described the mechanics of the most intrusive types of reporting – traditional monitorship and self-reporting.  See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013).

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  • Facilitation Payments, Foreign Officials, Bona Fide Expenditures and More: Actionable Insight from the Authors of “Defending Clients in FCPA Investigations”

    Mark P. Goodman and Bruce E. Yannett, partners at Debevoise & Plimpton LLP, and Daniel J. Fetterman, a partner at Kasowitz, Benson, Torres & Friedman LLP, are the FCPA experts behind “Defending Clients in Foreign Corrupt Practices Investigations,” a chapter in the 2012 treatise “Defending Corporations and Individuals in Government Investigations.”  Their chapter addresses the hot button issues companies are facing today as the SEC and DOJ continue to increase the pressure on global companies to implement and enforce best of breed FCPA compliance programs.  Goodman and Fetterman recently shared their insight on some of these pressing issues with The FCPA Report.  In our interview, they discussed how far the FCPA’s jurisdiction reaches in light of recent case law and the FCPA Guidance, including the jurisdictional implications for aiders, abettors and conspirators; details regarding rewards under the new Dodd-Frank whistleblower provisions; who is a foreign official and whether it matters; how companies should handle facilitation payments; advice on reasonable business expenses after the Guidance; the concept of virtual strict liability in accounting violations of the FCPA; how judicial review will impact settlements; the collateral effects of an FCPA settlement; and when to self-report an FCPA violation.

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  • How to Perform Effective FCPA Due Diligence in Private Equity Transactions and Strategic Mergers and Acquisitions

    Corporations conducting mergers and acquisition, organizations that provide financing and even companies that are simply acquiring assets risk violating the FCPA and other anti-corruption laws if they fail to perform adequate due diligence.  A panel of experts at the New York City Bar, including both litigators and transactional attorneys, recently shared their insights on how to structure and conduct various types of deals in a manner that protects the acquirer from FCPA liability.  The panelists offered advice on, among other things, the different forms of M&A transactions; addressing the challenges of performing due diligence for anti-corruption purposes; determining how much due diligence is necessary; negotiating for the right to perform sufficient due diligence; performing post-acquisition due diligence; protecting the acquirer through language in the deal documents; and FCPA liability for private equity investors.

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  • How to Defend Individuals Against FCPA Charges (Part One of Two)

    Government officials repeatedly have stated that FCPA charges against individuals will become more frequent.  Accordingly, defending against such charges is expected to become a more common practice among FCPA lawyers.  But defending individuals against FCPA charges is different in important ways from defending corporations; and the issues faced by corporations whose people are charged are notably different from the issues faced by corporations which themselves are charged.  A panel of experts at the New York City Bar recently shared their insights on salient concerns related to representing individuals facing FCPA charges.  The FCPA Report is synthesizing their advice in a two-part article series.  This article, the first in the series, discusses the primary differences between representing individuals and corporations; the key points to remember when negotiating payment of an individual’s attorney fees; when to enter into and how to draft Joint Defense Agreements; and how to gather information from company counsel.  The second article in this series will address advising individual FCPA defendants on whether to participate in a company interview; when and how to cooperate with counsel for other individuals; and tips for cooperating with the government.

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

    Breathing life into even a comprehensive compliance manual is a challenge for most companies.  How can a company ensure that its program is proactive and dynamic, and that it is working at every level of the company?  How can the company ensure that third parties are being vetted at every stage of the process?  A recent webinar featuring H. David Kotz, Director at Berkeley Research Group and former Inspector General of the SEC, and Paul Zikmund, Director of Global Ethics and Compliance at Bunge Limited, tackled these and other hard questions head on, incorporating their long and relevant experience, as well as lessons from the recently-issued FCPA Guidance.  This article, the second in a two-part series, discusses the panelists’ advice regarding the best path forward after a risk score is assigned to a third party, including details about a “boots-on-the-ground” approach to due diligence; 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.  The first article in the series discussed 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.  See “Six Steps for Converting a ‘Paper’ FCPA Compliance Program into a Pervasive Culture of Anti-Bribery Compliance (Part One of Two),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013).

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  • Knowing Your Partners: Three Steps to Reduce FCPA Risk from Third Party Intermediaries

    The failure to pre-screen and monitor third party intermediaries (TPI) are the root causes of many recent FCPA investigations.  Thus, devising and implementing a consistent process for TPI due diligence and auditing, as well as understanding regulatory differences across the globe, are “must do” items for companies operating overseas.  Marc Miller, a partner in the New York forensic and risk consulting practice of KPMG LLP, recently shared his advice on identifying and mitigating risks involving TPIs in a webinar sponsored by compliance software developer Aravo Solutions, Inc. entitled “The Increasing Business Risk of FCPA Failures.”  Miller suggested that companies focus on three steps when it comes to third parties, each of which is described in detail in this article.  Miller also discussed his view on recent enforcement trends, informed by the Guidance.

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  • Major Chinese Petrochemical Company, Formed by Reverse Merger, Resolves Insider Trading and FCPA Charges with the SEC

    It’s an insider trading case with an FCPA twist: the SEC has announced that China-based Keyuan Petrochemicals, and its former CFO, Aichun Li, have resolved charges of violations of anti-fraud and reporting provisions of federal securities laws for failing to disclose related party transactions (a form of insider trading) as well for giving gifts to Chinese officials from a secret account.  The settlement must be approved by a judge.  See “Judge’s Refusal to Approve Civil FCPA Settlement Raises Concerns for Future FCPA Settlements with the SEC,” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013); “District Court Judge Modifies Demands in Push for Stricter Judicial Review of Civil FCPA Settlements,” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • Mythili Raman Appointed Acting Assistant Attorney General for DOJ’s Criminal Division

    Mythili Raman was appointed Acting Assistant Attorney General for the DOJ’s Criminal Division on March 1, 2013, in the wake of Lanny Breuer’s departure.  The Criminal Division has primary authority for criminal enforcement of the FCPA.

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