FCPA Analysis & Commentary: A Compliance Friday Update

For your reference, here’s what lawyers and law firms on JD Supra have recently written regarding the Foreign Corrupt Practices Act (FCPA) and global compliance: 

Congress, Get Out Your Pencils: FCPA Rules Are Ripe for Revision (Dinsmore & Shohl LLP):

“The cycle of certain laws is all too familiar. A specific issue or need arises and gains national attention. Congress drafts a law with the best intentions of solving the problem. Experts and the public applaud the legislation for bringing significant change. Only years later does the country discover that there are additional consequences beyond what the drafters intended. The discovery of these new issues sends Congress back to the drawing board. The Foreign Corrupt Practices Act (FCPA) is a prime example of a law that has been through this cycle and needs to be redrafted.” Read more»

The FSA Bares its Teeth: Be Aware of International Enforcement Regimes (Thomas Fox):

“While many companies here in the US complain about the enforcement of the Foreign Corrupt Practices Act (FCPA), and are actively seeking to soften its enforcement by lobbying Congress to amend the FCPA, just imagine how they might feel about paying a multi-million dollar fine for a situation in which no bribery was proven. That is the situation that UK insurance broker Willis Ltd., found itself in yesterday, in what reporter Sam Rubenfeld termed ‘the largest fine by the FSA (the UK Financial Services Authority) … ever imposed for failure to implement controls to prevent financial crimes’.” Read more»

Getting Specific About FCPA Compliance (Sheppard Mullin Richter & Hampton LLP):

“On April 8, 2011, the U.S. Department of Justice announced that it had reached a settlement with Johnson & Johnson and its subsidiaries for Foreign Corrupt Practices Act violations. Compared to prior FCPA settlements, the DOJ elaborated much more specific compliance measures that it expected Johnson & Johnson to take as part of the settlement.” Read more»

The FCPA in BRIC Countries: 2011 Enforcement Trends in Emerging Markets (McDermott Will & Emery):

“… Attractive as potential investment opportunities in BRIC may be, U.S. and multinational companies need to remain vigilant to the potential corruption risks of doing business in these emerging markets. It is apparent that BRIC-based entities will become increasingly subject to U.S. FCPA enforcement in coming years, while emerging market governments are increasingly willing to piggyback off U.S. enforcement actions, and cross-border cooperation will increase in enforcing anti-bribery laws.” Read more»

Corporate Breakout Session – Anti-Corruption Laws – the FCPA (International Lawyers Network):

“Yesterday, I shared with you this post re-capping Alishan Naqvee’s introduction to the topic of anti-corruption at our 2011 Annual Meeting. To follow up on that, we’ll review Stuart Gerson’s (Epstein Becker & Green) comments during the session regarding the Foreign Corrupt Practices Act (FCPA) and its implications for those in the room.” Read more»

Take Us Up to Warp Speed Mr. Sulu: News Corp, James Murdoch and the FCPA (Thomas Fox):

“For those of us science fiction fans who grew up in the 60s, Star Trek was the premier TV show. If you wanted to go somewhere fast, warp speed was about the fastest way anyone knew how to travel…. I raise all this by way of introduction to the near light speed catapulting from Friday until today of the possible Foreign Corrupt Practices Act (FCPA) issues against News Corp and James Murdoch in conjunction with the claims that (the now former) United Kingdom (UK) newspaper News of the World is alleged to have paid bribes to persons in the police force in the UK.” Read more»

The Gabon Mistrial: DOJ Prosecution of Individuals Puts Aggressive FCPA Theories Under Fire (Morgan Lewis):

“In a blow to the U.S. Department of Justice’s (DOJ’s) efforts to increase enforcement of the Foreign Corrupt Practices Act (FCPA) against individuals, Judge Richard J. Leon of the U.S. District Court for the District of Columbia declared a mistrial on July 7 in a case against four defendants charged in connection with an extensive undercover sting operation executed by the FBI. The trial was against four of 22 defendants charged with conspiring to pay bribes to the Defense Minister of Gabon in order to secure a $15 million equipment contract.” Read more»

Corporate Social Responsibility and the FCPA (Thomas Fox):

“I was surprised to see the continuing the defense of the Foreign Corrupt Practices Act (FCPA) in publications normally thought of as pro-business. On July 1, authors Amol Mehra and Ajoke Agbool published an article in Forbes.com entitled, “The Corporate Responsibility to Prevent Corruption.” This article followed two articles in the Wall Street Journal (WSJ) from the previous week which discussed the positive effects of the FCPA.” Read more»

FCPA Enforcement After Lindsey- DOJ’s Aggressive FCPA Pursuits Make Robust Compliance Policies Essential (Dinsmore & Shohl LLP):

“A recent landmark jury verdict out of the Central District of California significantly broadens the scope of the Foreign Corrupt Practices Act, making corporate compliance with the Act more essential now than ever before. The Department of Justice has taken notice of the decision, and now corporations must as well.” Read more»

Can a Libyan Rebel Be a Foreign Governmental Official under the FCPA (Thomas Fox):

“Can a person be a Foreign Governmental Official when the persons they are assisting, the Libyan rebels, are not recognized as the national government of a country. Even if a government is under economic sanctions by almost every country in the world that does not necessarily mean that it is not the government of that country.” Read more»

The Implications for FCPA Enforcement of the SEC’s New Whistleblower Rules (Bryan Cave):

“The Securities and Exchange Commission’s recent adoption of rules to implement the whistleblower program mandated by the Dodd-Frank Act has particular significance for enforcement of the Foreign Corrupt Practices Act (“FCPA”). This Alert discusses the overall SEC enforcement context for the new whistleblower rules, summarizes the rules, and then discusses what we believe to be the key issues for FCPA enforcement, including recommendations for steps that companies should take now.” Read more»

Deferred Prosecution Agreements Truly a “Game Changer” at the SEC for FCPA Violations? (Morrison & Foerster LLP):

“The SEC’s message is consistent and clear: companies that self-report Foreign Corrupt Practice Act (“FCPA”) violations will have better outcomes than companies that do not voluntarily come forward. Critics counter by questioning the benefits of voluntary disclosure, pointing to SEC settlements in which companies that self-reported faced similar (or arguably worse) outcomes as companies that did not.” Read more»

Human Resources’ Role in FCPA Compliance (Dinsmore & Shohl LLP):

“Now more than ever it is important for human resources professionals to become vigilant partners in FCPA compliance. The provisions of the act are stringent and require strict adherence. Moreover, the whistleblower provision of the Dodd-Frank Act of 2010 provide financial incentives for employees to report FCPA violations and protection against retaliation for those that do.” Read more»


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