fcpa-resource-guide

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5 SEC Contact Information FCPA Unit Chief Division of Enforcement U .S . Securities and Exchange Commission 100 F Street, N .E . Washington, DC 20549 Online: Tips, Complaints, and Referrals website http://www .sec .gov/complaint/tipscomplaint .shtml Office of Investor Education and Advocacy: (800) SEC-0330 or stockholders acting on the issuer’s behalf. SEC’s Division of Enforcement has responsibility for investigating and prosecuting FCPA violations. In 2010, SEC’s Enforcement Division created a specialized FCPA Unit, with attorneys in Washington, D.C. and in regional offices around the country, to focus specifically on FCPA enforcement. The Unit investigates potential FCPA violations; facilitates coordination with DOJ’s FCPA program and with other federal and international law enforcement partners; uses its expert knowledge of the law to promote consistent enforcement of the FCPA; analyzes tips, complaints, and referrals regarding allegations of foreign bribery; and conducts public outreach to raise awareness of anti-corruption efforts and good corporate governance programs. The FCPA Unit maintains a “Spotlight on FCPA” section on SEC’s website at http://www.sec.gov/spotlight/ fcpa.shtml. The website, which is updated regularly, provides general information about the Act, links to all SEC enforcement actions involving the FCPA, including both federal court actions and administrative proceedings, and contains other useful information. Individuals and companies with information about possible FCPA violations by issuers may report them to the Enforcement Division via SEC’s online Tips, Complaints and Referral system, http://www.sec.gov/complaint/tipscomplaint.shtml. They may also submit information to SEC’s Office of the Whistleblower through the same online system or by contacting the Office of the Whistleblower at (202) 551-4790. Additionally, investors with questions about the FCPA can call the Office of Investor Education and Advocacy at (800) SEC-0330. For more information about SEC’s Whistleblower Program, under which certain eligible whistleblowers may be entitled to a monetary award if their information leads to certain SEC actions, see Chapter 8. Law Enforcement Partners DOJ’s FCPA Unit regularly works with the Federal Bureau of Investigation (FBI) to investigate potential FCPA violations. The FBI’s International Corruption Unit has primary responsibility for international corruption and fraud investigations and coordinates the FBI’s national FCPA enforcement program. The FBI also has a dedicated FCPA squad of FBI special agents (located in the Washington Field Office) that is responsible for investigating many, and providing support for all, of the FBI’s FCPA investigations. In addition, the Department of Homeland Security and the Internal Revenue Service-Criminal Investigation regularly investigate potential FCPA violations. A number of other agencies are also involved in the fight against international corruption, including the Department of Treasury’s Office of Foreign Assets Control, which has helped lead a number of FCPA investigations. Departments of Commerce and State Besides enforcement efforts by DOJ and SEC, the U.S. government is also working to address corruption abroad and level the playing field for U.S. businesses through the efforts of the Departments of Commerce and State. Both Commerce and State advance anti-corruption and good governance initiatives globally and regularly assist U.S. companies doing business overseas in several
important ways. Both agencies encourage U.S. businesses to seek the assistance of U.S embassies when they are confronted with bribe solicitations or other corruption-related issues overseas. 23 The Department of Commerce offers a number of important resources for businesses, including the International Trade Administration’s United States and Foreign Commercial Service (Commercial Service). The Commercial Service has export and industry specialists located in over 100 U.S. cities and 70 countries who are available to provide counseling and other assistance to U.S. businesses, particularly small and medium-sized companies, regarding exporting their products and services. Among other things, these specialists can help a U.S. company conduct due diligence when choosing business partners or agents overseas. The International Company Profile Program, for instance, can be part of a U.S. business’ evaluation of potential overseas business partners. 24 Businesses may contact the Commercial Service through its website, http://export.gov/ eac/, or directly at its domestic and foreign offices. 25 Additionally, the Department of Commerce’s Office of the General Counsel maintains a website, http://www. commerce.gov/os/ogc/transparency-and-anti-briberyinitiatives, that contains recent articles and speeches, links to translations of the FCPA, a catalogue of anti-corruption resources, and a list of international conventions and initiatives. The Trade Compliance Center in the Department of Commerce’s International Trade Administration hosts a website with anti-bribery resources, http://tcc.export. gov/Bribery. This website contains an online form through which U.S. companies can report allegations of foreign bribery by foreign competitors in international business transactions. 26 The Department of Commerce also provides information to companies through a number of U.S. and international publications designed to assist firms in complying with anti-corruption laws. For example, the Department of Commerce has included a new anti-corruption section in its Country Commercial Guides, prepared by market experts at U.S. embassies worldwide, that contains information on market conditions for more than 100 countries, including information on the FCPA for exporters. 27 The Department of Commerce has also published a guide, Business Ethics: A Manual for Managing a Responsible Business Enterprise in Emerging Market Economies, which contains information about corporate compliance programs for businesses involved in international trade. 28 The Departments of Commerce and State also provide advocacy support, when determined to be in the national interest, for U.S. companies bidding for foreign government contracts. The Department of Commerce’s Advocacy Center, for example, supports U.S. businesses competing against foreign companies for international contracts, such as by arranging for the delivery of an advocacy message by U.S. government officials or assisting with unanticipated problems such as suspected bribery by a competitor. 29 The Department of State’s Bureau of Economic and Business Affairs (specifically, its Office of Commercial and Business Affairs) similarly assists U.S. firms doing business overseas by providing advocacy on behalf of U.S. businesses and identifying risk areas for U.S. businesses; more information is available on its website, http://www.state.gov/e/ eb/cba/. Also, the Department of State’s economic officers serving overseas provide commercial advocacy and support for U.S. companies at the many overseas diplomatic posts where the Commercial Service is not represented. The Department of State promotes U.S. government interests in addressing corruption internationally through country-to-country diplomatic engagement; development of and follow-through on international commitments relating to corruption; promotion of high-level political engagement (e.g., the G20 Anticorruption Action Plan); public outreach in foreign countries; and support for building the capacity of foreign partners to combat corruption. In fiscal year 2009, the U.S. government provided more than $1 billion for anti-corruption and related good governance assistance abroad. chapter 1 Introduction 6
Page 1 and 2: chapter 1 Introduction FCPA A Resou
Page 3 and 4: A RESOURCE GUIDE TO THE U.S. FOREIG
Page 6 and 7: CONTENTS Chapter 1: INTRODUCTION .
Page 8 and 9: Confidential Reporting and Internal
Page 11 and 12: INTRODUCTION Congress enacted the U
Page 13: DOJ Contact Information Deputy Chie
Page 17: Phase 3 review of the United States
Page 20 and 21: 11 How Can I Tell If My Company Is
Page 22 and 23: 13 Examples of Actions Taken to Obt
Page 24 and 25: 15 expensive gifts. Like the domest
Page 26 and 27: 17 For example, a pharmaceutical co
Page 28 and 29: 19 also were not in compliance with
Page 30 and 31: 21 Mexican national oil company. 12
Page 32 and 33: 23 • the third party became part
Page 34 and 35: 25 What Are Facilitating or Expedit
Page 36 and 37: 27 Does the FCPA Apply to Cases of
Page 38 and 39: 29 Practical Tips to Reduce FCPA Ri
Page 40 and 41: 31 Hypothetical: Successor Liabilit
Page 42 and 43: 33 have stopped and quickly integra
Page 44 and 45: 35 under 18 U.S.C. § 371. For cons
Page 47 and 48: THE FCPA: ACCOUNTING PROVISIONS In
Page 49 and 50: Internal Controls Provision The pay
Page 51 and 52: What Are Management’s Other Oblig
Page 53 and 54: the Exchange Act (15 U.S.C. § 78m(
Page 55: chapter 3 The FCPA: Accounting Prov
Page 58 and 59: 49 violations, 280 three former Hai
Page 61 and 62: GUIDING PRINCIPLES OF ENFORCEMENT W
Page 63 and 64: consider whether the case involves
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• the appropriateness of a cooper
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has taken steps to make certain tha
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forms such as personnel evaluations
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industry. In addition, compliance p
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chapter 5 Guiding Principles of Enf
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chapter 5 Guiding Principles of Enf
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69 to determine whether the Guideli
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71 Reconstruction and Development,
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RESOLUTIONS What Are the Different
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What Are the Different Types of Res
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• The company discovered that its
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chapter 7 Resolutions 80
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83 On August 12, 2011, the final ru
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DOJ OPINION PROCEDURE DOJ’s opini
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chapter 9 DOJ Opinion Procedure 88
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THE FOREIGN CORRUPT PRACTICES ACT:
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present enforcement policy with res
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ordered, or to give testimony touch
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(2) As used in this subsection, a
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(B) The term “routine governmenta
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[Section 30A of the Exchange Act]of
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105 that firms that pay more bribes
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107 55 See International Anti-Bribe
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109 enjoining it from future violat
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111 opinion/2004/0401.pdf; U.S. Dep
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113 Fla. Dec. 14, 2010), ECF No. 3,
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115 order to make clear that, consi
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117 to them. . . . Corporate office
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119 circumstances were present: (1)
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FCPA Unit Fraud Section, Criminal D
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