The FCPA Report

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

Recent Issue Headlines

Vol. 4, No. 21 (Oct. 21, 2015) Print IssuePrint This Issue

  • Customs Corruption Risks: Identifying the Problem Areas (Part One of Three)

    Moving goods from one country to another – a staple of many businesses – exposes companies to various points of bribery risk as employees try to navigate different customs regimes and expedite shipments.  In this three-article series, we explore customs-related hurdles and FCPA risks.  This, the first article in the series, examines how the customs system works and the risks associated with that system, including books and records violations for inaccurate customs forms and the temptation for employees to make illegal payments to customs officials to ensure that their paperwork is approved as quickly as possible.  The article also outlines four ways to mitigate customs risks.  The second article in the series will take a closer look at how to address the risks arising from working with customs brokers, freight forwarders and other third-party vendors.  The third article will discuss facilitation payments in the customs context, including whether companies should allow such payments and, if so, how they can structure their compliance policies to minimize risks.  See also “Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 2 (Jun. 6, 2012).

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  • Fighting the Dynamic War on Corruption in China

    Corruption poses a constant risk to companies operating in China, but the nature of that risk is always shifting.  Creative ways to create slush funds that can be used for bribery proliferate in China – travel agents, marketing companies and distributors have all been involved in funneling corrupt funds to foreign officials on behalf of businesses.  In that environment, a company must have a dynamic and comprehensive compliance program.  The FCPA Report, Paul Hastings and EY recently hosted a roundtable discussion about how companies can address and uncover new corruption issues in China while continuously monitoring old issues.  The panel was moderated by The FCPA Report’s Editor-in-Chief, Nicole Di Schino.  The panelists, all recognized experts in Chinese anti-corruption, included: Nat Edmonds, a Paul Hastings partner and former FCPA prosecutor; Ananda Martin, a partner in Paul Hastings’ Shanghai office; and John Auerbach, a partner and former Greater China managing partner in EY’s fraud investigation and dispute services group.  This article summarizes the highlights of the panel discussion.  For more insight from these experts, see “The Emperor Is Far Away: The Evolving Nature of Third-Party Risk in China,” The FCPA Report, Vol. 4, No. 18 (Sep. 9, 2015); and “Responding to China’s Aggressive Anti-Corruption Enforcement,” The FCPA Report, Vol. 4, No. 19 (Sep. 23, 2015).

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  • Regional Risk Spotlight: John Vincent Lonsberg of Baker Botts Helps Untangle the U.A.E.’s Web of Anti-Corruption Laws

    The Middle East is an increasingly attractive place to do business, particularly for the energy and defense sectors.  It can be tempting to consider the region as a uniform block with the same laws and cultures.  However, local anti-corruption laws can vary drastically from country to country in the area.  The United Arab Emirates is not the largest country in the region, but due to its federal structure, it has one of the most complicated anti-corruption regimes.  Its web of federal laws, local laws and ministry policies can make it difficult for foreign companies to identify anti-corruption risks.  For this installment of the Regional Risk Spotlight series, The FCPA Report spoke with John Vincent Lonsberg, a partner at Baker Botts based in Dubai, who has more than three decades of experience doing business in this part of the world.  Lonsberg discussed, among other things, how the U.A.E.’s conflicts of interest laws and economic offset programs complicate working with local third parties, the difficulties of determining who is a foreign official and changing attitudes towards gift-giving in this wealthy federation.  See “Mitigating Corruption Risk in the Middle East (Part One of Two),” The FCPA Report, Vol. 4, No. 15 (Jul. 22, 2015); Part Two, Vol. 4, No. 16 (Aug. 5, 2015).

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  • A Defense Lawyer, a Prosecutor and a Witness Discuss Cooperating with the Government

    Anti-corruption officials have been emphasizing their use of traditional law enforcement methods – wiretaps, undercover agents, confidential informants – to pursue FCPA matters.  Individuals questioned by the government about participation in a bribery scheme should think about cooperation while companies must be aware that some employees may be cooperators.  The recent Yates memo also may mean that companies will be more actively providing information about individuals to the government.  In another installment of our candid conversation with parties who sat on all sides of the table during an FCPA case, we explore the government’s investigation process, from the company’s initial self-report through the settlement, through the prism of that case and the larger enforcement trends.  Then-head prosecutor, Billy Jacobson, now a partner at Orrick; the defendant, Richard Bistrong, who now operates anti-corruption consulting company Front-Line Anti-Bribery; and Bistrong’s attorney Brady Toensing, a partner at diGenova & Toensing, share their insights.  See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two),” The FCPA Report, Vol. 4, No. 19 (Sep. 23, 2015); Part Two, Vol. 4, No. 20 (Oct. 7, 2015).

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  • A Dangerous Harbor?  Analyzing the European Court of Justice Ruling

    An Austrian graduate student’s lawsuit against Facebook has resulted in the invalidation of a 15-year old data privacy treaty relied upon by thousands of multi-national companies.  On October 6, 2015, the Court of Justice of the European Union (ECJ), the highest court in the E.U., held that the Safe Harbor framework that allowed companies to transfer personal data from the E.U. to the U.S., including data for cross-border investigations and discovery, is invalid.  The ECJ found that the U.S. does not ensure adequate protection for personal data, primarily because of the access rights that the ECJ said U.S. agencies have.  Although the ruling is immediate, the “sky is not falling,” said Harriet Pearson, a partner at Hogan Lovells.  On October 16, 2015, a group of E.U. member state privacy regulators, the Article 29 Working Party, called for renewed negotiations on a treaty and recommended interim actions for companies.  There will need to be a “transition to a more complex and perhaps a more work-intensive compliance strategy than Safe Harbor had previously afforded companies,” Pearson said.  See “Checklist of Actions to Take and Issues to Consider When Navigating Data Privacy and Anti-Corruption Issues,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).

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  • How the Department of Commerce Can Help Companies Address Anti-Corruption and Cybersecurity Concerns

    When the SEC or the DOJ talk about the FCPA, businesses stop and listen.  But the U.S Department of Commerce, the agency tasked with promoting the interests of U.S. businesses both domestically and abroad, can also assist companies with anti-corruption compliance.  During the Society for Corporate Compliance and Ethics’ 2015 Compliance and Ethics Institute, Justin Antonipillai, Acting General Counsel at the Commerce Department, spoke about the Department’s role in FCPA enforcement and highlighted how the Department can help companies with various compliance concerns.  We summarize the key takeaways from his presentation.  See “Government Officials and Defense Bar Offer Insights on FCPA Enforcement, Voluntary Disclosure and Cooperation,” The FCPA Report, Vol. 4, No. 14 (Jul. 8, 2015).

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  • EY Adds Former FCPA Officials to Fraud Investigation and Dispute Services Practice

    EY has announced that Jennifer Baskin and Stephen Spiegelhalter have joined its fraud investigation and dispute services practice as partners in the firm’s Washington, D.C., office.  Baskin was the first forensic accountant attached to the SEC’s FCPA Unit.  Spiegelhalter was a federal prosecutor within the FCPA Unit of the DOJ’s Criminal Fraud Section.  See “Ernst & Young Experts Reveal How Forensic Data Analytics Can Transform Anti-Corruption Compliance,” The FCPA Report, Vol. 3, No. 9 (Apr. 30, 2014).

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  • Senior DOJ Trial Attorney Joins WilmerHale

    WilmerHale recently added Justin Goodyear as counsel in its D.C. office.  Goodyear focuses his practice on white collar enforcement, internal investigations, FCPA and other litigation matters.  For insight from the firm, see “Regional Risk Spotlight:  Jay Holtmeier of WilmerHale Explains How to Navigate Bureaucratic Corruption Risks in India,” The FCPA Report, Vol. 4, No. 19, (Sep. 23, 2015); and “WilmerHale Partners Discuss How Private Fund Managers Can Address Growing Corruption Risks,” The FCPA Report, Vol. 4, No. 12 (Jun. 10, 2015).

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  • Mario Mancuso to Join Kirkland & Ellis

    Kirkland & Ellis recently announced that national security expert Mario Mancuso will join the firm as leader of the National Security and Committee on Foreign Investment in the United States practice.  He will divide his time between the firm’s D.C. and New York offices, serving clients on related transactional, investigative and advisory matters worldwide.  Mancuso joins Kirkland from Fried Frank where he was head of the international trade and investment, aerospace and defense, and Israel practices.  

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