fcpa-resource-guide

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CONTENTS Chapter 1: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 The Costs of Corruption 2 Historical Background 3 National Landscape: Interagency Efforts 4 Department of Justice 4 Securities and Exchange Commission 4 Law Enforcement Partners 5 Departments of Commerce and State 5 International Landscape: Global Anti-Corruption Efforts 7 OECD Working Group on Bribery and the Anti-Bribery Convention 7 U N Convention Against Corruption 8 Other Anti-Corruption Conventions 8 Chapter 2: THE FCPA: ANTI-BRIBERY PROVISIONS . . . . . . . . . . . . . . . . . . . . 10 Who Is Covered by the Anti-Bribery Provisions? 10 Issuers—15 U S C § 78dd-1 10 Domestic Concerns—15 U S C § 78dd-2 11 Territorial Jurisdiction—15 U S C § 78dd-3 11 What Jurisdictional Conduct Triggers the Anti-Bribery Provisions? 11 What Is Covered?—The Business Purpose Test 12 What Does “Corruptly” Mean? 14 What Does “Willfully” Mean and When Does It Apply? 14 What Does “Anything of Value” Mean? 14 Cash 15 Gifts, Travel, Entertainment, and Other Things of Value 15 Charitable Contributions 16 Who Is a Foreign Official? 19 Department, Agency, or Instrumentality of a Foreign Government 20 Public International Organizations 21 How Are Payments to Third Parties Treated? 21 What Affirmative Defenses Are Available? 23 The Local Law Defense 23 Reasonable and Bona Fide Expenditures 24 What Are Facilitating or Expediting Payments? 25 Does the FCPA Apply to Cases of Extortion or Duress? 27 Principles of Corporate Liability for Anti-Bribery Violations 27 Parent-Subsidiary Liability 27 Successor Liability 28 Additional Principles of Criminal Liability for Anti-Bribery Violations: Aiding and Abetting and Conspiracy 34
Additional Principles of Civil Liability for Anti-Bribery Violations: Aiding and Abetting and Causing 34 What Is the Applicable Statute of Limitations? 34 Statute of Limitations in Criminal Cases 34 Statute of Limitations in Civil Actions 35 Chapter 3: THE FCPA: ACCOUNTING PROVISIONS . . . . . . . . . . . . . . . . . . . . 38 What Is Covered by the Accounting Provisions? 39 Books and Records Provision 39 Internal Controls Provision 40 Potential Reporting and Anti-Fraud Violations 41 What Are Management’s Other Obligations? 42 Who Is Covered by the Accounting Provisions? 42 Civil Liability for Issuers, Subsidiaries, and Affiliates 42 Civil Liability for Individuals and Other Entities 43 Criminal Liability for Accounting Violations 44 Conspiracy and Aiding and Abetting Liability 45 Auditor Obligations 45 Chapter 4: OTHER RELATED U .S . LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Travel Act 48 Money Laundering 48 Mail and Wire Fraud 49 Certification and Reporting Violations 49 Tax Violations 49 Chapter 5: GUIDING PRINCIPLES OF ENFORCEMENT . . . . . . . . . . . . . . . . . . 52 What Does DOJ Consider When Deciding Whether to Open an Investigation or Bring Charges? 52 DOJ Principles of Federal Prosecution 52 DOJ Principles of Federal Prosecution of Business Organizations 52 What Does SEC Consider When Deciding Whether to Open an Investigation or Bring Charges? 53 Self-Reporting, Cooperation, and Remedial Efforts 54 Criminal Cases 54 Civil Cases 55 Corporate Compliance Program 56 Hallmarks of Effective Compliance Programs 57 Commitment from Senior Management and a Clearly Articulated Policy Against Corruption 57 Code of Conduct and Compliance Policies and Procedures 57 Oversight, Autonomy, and Resources 58 Risk Assessment 58 Training and Continuing Advice 59 Incentives and Disciplinary Measures 59 Third-Party Due Diligence and Payments 60
Page 1 and 2: chapter 1 Introduction FCPA A Resou
Page 3 and 4: A RESOURCE GUIDE TO THE U.S. FOREIG
Page 8 and 9: Confidential Reporting and Internal
Page 11 and 12: INTRODUCTION Congress enacted the U
Page 13 and 14: DOJ Contact Information Deputy Chie
Page 15 and 16: important ways. Both agencies encou
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
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49 violations, 280 three former Hai
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GUIDING PRINCIPLES OF ENFORCEMENT W
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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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