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Category Archives: Anti-Bribery and Corruption

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Anti-Bribery and Corruption, Compliance, Enforcement and Prosecution Policy and Trends, Fraud, Deception and False Claims

UK Government’s Response to the Department for Business, Innovation and Skills “Whistleblowing Framework: Call For Evidence”

Crucially businesses should be confident that reprisals against whistle-blowers are not an issue for them, and that their organisation understands and trusts any whistleblowing policy and procedure they have in place. Deficiencies in these areas may very well lead to a Regulator challenging the overall effectiveness and adequacy of an organisations compliance programme.… Continue Reading
Anti-Bribery and Corruption, Enforcement and Prosecution Policy and Trends

“The FCPA Does Not Define the Term ‘Instrumentality,’ and this Court Has Not Either.” The 11th Circuit Issues a Decision “Defining” Instrumentality

On May 16, 2014, the U.S. Court of Appeals for the 11th Circuit ruled in U.S. v. Esquenazi that the Foreign Corrupt Practices Act’s (FCPA’s) “instrumentality” provision could include state-owned businesses. Joel Esquernazi and Carlos Rodriquez co-owned Terra Communications (Terra). In 2011, a jury convicted Esquernazi and Rodriquez on 21 counts related to their business… Continue Reading
Anti-Bribery and Corruption, Compliance, Election and Political Law, Energy Enforcement, Securities and Commodities

Avoiding Waiver When Disclosing Facts to the Government

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged. In two related cases, Judge Francis of the… Continue Reading
Anti-Bribery and Corruption

SEC Comments Bring Commercial Bribery Clearly into FCPA Scope

While the potential reach of the UKBA has begun to broaden perceptions of what is necessary to ensure an anticorruption compliance program is appropriately inclusive and robust, recent comments by one senior U.S. Securities and Exchange Commission (SEC) official should remind us that the FCPA's accounting provisions may serve as a vehicle for penalizing companies for acts of commercial bribery if they result in maintenance of inaccurate books and records or otherwise undermine a company's system of internal controls.… Continue Reading
Anti-Bribery and Corruption

DPAs, NPAs and the Hybrid Corporate Monitor

In two recent FCPA-related settlements in the medical devices industry in February and March 2013, and in the manufacturing industry in October 2013, DOJ adopted a "hybrid" approach to monitoring. The DPAs entered in each settlement imposed a compliance monitorship whereby the company must retain an independent monitor for an 18-month period and then self-monitor and report its compliance with the agreement for the remaining 18 months of the DPA.… Continue Reading
Anti-Bribery and Corruption, Compliance, Securities and Commodities

SEC Comments Bring Commercial Bribery Clearly into FCPA Scope

Commercial bribery is prohibited by many anticorruption laws throughout the world, including notable examples such as the UK Bribery Act (UKBA). However, the anti-bribery provisions of the U.S. Foreign Corrupt Practices Act (FCPA) focus on official bribery, leaving commercial bribery to be pursued by U.S. law enforcement, if at all, under a variety of federal… Continue Reading
Anti-Bribery and Corruption, Compliance, Enforcement and Prosecution Policy and Trends

DPAs, NPAs and the Hybrid Corporate Monitor

In the relatively short but significant history of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), imposition of an independent monitor has typically been an all-or-nothing proposition. A monitor was either required for the entire term of the agreement (usually three years), or a monitor was not required at all. Recent enforcement actions, however, signal… Continue Reading
Anti-Bribery and Corruption, Enforcement and Prosecution Policy and Trends

Transparency International 2013 Corruption Perceptions Index

For anyone who perhaps naively might have thought that there may be uniformity across the single market in the European Union, they may be mistaken as Cyprus is in 31st position, Spain in 40th position, Czech Republic in 57th position (only slightly ahead of Ghana), Italy in 69th position only slightly ahead of Brazil at 72 and China at 80.… Continue Reading
Anti-Bribery and Corruption, Compliance, Election and Political Law, Enforcement and Prosecution Policy and Trends

Weatherford’s “loose controls and anaemic compliance” leads to $253 million bribery and sanctions penalties

This is a salutary tale for any companies, wherever they are situated in the world, which still think that their illegal activities will never be discovered. Usually it is only a question of time, and the penalties can be huge, as well as the impact on the business in sorting it all out.… Continue Reading

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