This article was reprinted with permission from FCPA Professor
Did you notice?, scrutiny updates, quotable, too narrow, save the date and for the reading and viewing stack. It’s all here in the Friday roundup.
Did You Notice?
This previous post – “Double Dipping” – spotlighted a common trend in issuer FCPA enforcement actions. That is, the company pays twice for the improper conduct. First, to the DOJ because alleged improper gain is a key factor in the advisory U.S. sentencing guidelines which guide criminal fine amounts, and again to the SEC because alleged improper gain often equates to a disgorgement amount.
Did you notice the following in the recent Alcoa enforcement action? In the DOJ’s plea agreement with Alcoa World Alumina LLC the DOJ set forth various factors justifying a reduced criminal fine amount including: “the significant remedy being imposed on the Defendant’s majority shareholder, Alcoa, by the U.S. Securities and Exchange Commission for Alcoa’s conduct in this matter.”
FCPA practitioners would be wise to file this someplace important and the DOJ’s recognition of such “double-dipping” is a welcome development. Time will tell whether it was case specific.
Companies have different disclosure practices. Some companies disclose specific FCPA internal investigation costs, others do not. When a company falls into the former category, it is a relevant datapoint. Nordion (see this prior post for its initial disclosure) recently disclosed that its “full year expenses associated with [its] investigation was $11.8 million.”
Microsoft, which first became the subject of FCPA scrutiny in March 2013 (see here) - thereby exposing the fallacy of the “good companies, don’t bribe period” position (see here) – ”is now requiring its partners to educate their employees on the legal consequences of bribery and other illegal activity.” So says this recent article in CRN which further states: “A new Microsoft partner program requirement that went into effect this month calls for partners to “provide anti-corruption training to all employees who resell, distribute, or market Microsoft products or services,” Microsoft said in a document sent recently to partners, which was viewed by CRN.”
Homer Moyer (Miller & Chevalier and a dean of the FCPA) steps up to the plate and hits another one out of the park. In this recent article he states:
“One reality is the [FCPA] enforcement agencies’ views on issues and enforcement policies, positions on which they are rarely challenged in court. The other is what knowledgeable counsel believe the government could sustain in court, should their interpretations or positions be challenged. The two may not be the same. The operative rules of the game are the agencies’ views unless a company is prepared to go to court or to mount a serious challenge within the agencies.”
While the decision of one risk-averse business organization to settle an FCPA enforcement action may seem case specific, the long-term effects of such a decision affect not only the settling company, but other business organizations subject to increasingly aggressive FCPA enforcement theories. (See here for a previous guest post titled “Prosecutorial Common Law”).
As former Attorney General Alberto Gonzales rightly noted:
“In an ironic twist, the more that American companies elect to settle and not force the DOJ to defend its aggressive interpretation of the [FCPA], the more aggressive DOJ has become in its interpretation of the law and its prosecution decisions.”
See here, and here for the Truth in Settlements Act recently introduced by Senator Elizabeth Warren (D-MA) and Tom Coburn (R-OK). As stated here:
“Federal agencies are charged with holding companies and individuals accountable when they break the law, and their investigations regularly end in settlement agreements rather than public trials. All too often, the critical details of these agreements are hidden from the public.”
The bill is too narrow. The rule of law would be better advanced and transparency achieved by abolishing non-prosecution and deferred prosecution agreements.
Save the Date
On January 29th, Fordham Law School in New York City and the Chinese Business Lawyers Association will jointly host a panel titled “China and the Foreign Corrupt Practices Act: Challenges for the 21st Century.” The event will be held from 6:00–7:30 p.m. in the Law School’s McNally Amphitheatre. Speaker include:
Ohio State University Professor Daniel Chow, author of China Under the Foreign Corrupt Practices Act; Nathaniel Edmonds, Partner at Paul Hastings and Former Assistant Chief of the FCPA Unit of the Department of Justice; and Thomas O. Gorman, Partner at Dorsey & Whitney and Former Senior Counsel, Division of Enforcement, Securities and Exchange Commission.
To learn more and to register see here.
For the Reading and Viewing Stack
It would not be a major sporting event without FCPA Inc. marketing material. But then again, certain FCPA enforcement actions in recent years have included such allegations.
For the latest on the FCPA related case against Frederic Cilins, see here from Bloomberg. As noted in the article, Cilins “won approval from [the judge] to run forensic tests on contracts that were sought by a grand jury probing claims of bribes paid to win mining rights in Guinea.”
Multimedia content here from down under questioning the lack of Australia bribery related enforcement actions. (An interesting view, even if the program begins with a false statement).
A good weekend to all.
Read more articles on the FCPA by Mike Koehler at FCPA Professor.
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