Top Menu

Scrutiny Alerts And Updates

March 24, 2017

ING

Netherlands-based ING NV, a company with shares listed on the New York Stock Exchange, recently disclosed:

“ING Bank is the subject of criminal investigations by Dutch authorities regarding various requirements related to the on-boarding of clients, money laundering and corrupt practices. ING Groep has also received related information requests from U.S. authorities. ING Groep and ING Bank are cooperating with such ongoing investigations and requests. It is currently not feasible to determine how the ongoing investigations and requests may be resolved or the timing of any such resolution, nor to estimate reliably the possible timing, scope or amounts of any resulting fines, penalties and/or other outcome, which could be significant.”

Continue Reading

Why Has The DOJ Stopped Civilly Enforcing The FCPA?

March 23, 2017

The Foreign Corrupt Practices Act specifically authorizes the DOJ to civilly (not just criminally) enforce the statute against non-issuers.

Indeed, between 1991 and 2001 approximately 35% of all DOJ corporate FCPA enforcement actions were civil actions. However, the last time the DOJ invoked this express statutory remedy was in 2001 and the question is posed: why has the DOJ stopped civilly enforcing the FCPA?

Make sure to read to the end of the post to hear the DOJ’s non-responsive answer to this question.

Perhaps instead of creating new ways to enforce the FCPA not even mentioned in the statute (such as non-prosecution agreements, deferred prosecution agreements and most recently declinations with disgorgements) the DOJ should go back to enforcing the FCPA in ways expressly authorized by Congress.

Continue Reading

Once Upon A Time, The DOJ Did Specifically Identify “Foreign Officials” And Rep. Ros-Lehtinen Is Miffed That It Doesn’t Now

March 22, 2017

There are several material differences between how the DOJ enforces the Foreign Corrupt Practices Act in the modern era compared to the past.

For instances, as highlighted in this previous post, in the modern era the vast majority of corporate FCPA enforcement actions do not result in related individual charges against company employees. Between 1977 – 2004, the exact opposite was true – most corporate FCPA enforcement actions did result in related individual charges.

For most of the FCPA’s history, the DOJ either charged a business organization suspected of FCPA violations with an offense or did not charge the organization. In the modern era, the DOJ has created a buffet of options (non-prosecution agreements, deferred prosecution agreements) and added “declinations with disgorgements” to the buffet line in September 2016 (see here for the prior post).

As highlighted in this post, for many years the DOJ specifically identified “foreign officials” implicated in an FCPA enforcement action. However, in the modern era of FCPA enforcement the DOJ does not and Rep. Ileana Ros-Lehtinen (R-FL)(pictured) is rightfully miffed.

Continue Reading

FCPA Flash Podcast – A Conversation With Jay Darden Regarding DOJ FCPA Enforcement

March 21, 2017

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Jay Darden (Paul Hastings and former Assistant Chief of the DOJ’s Fraud Section). In the episode, Darden discusses what FCPA practitioners need to understand about being a DOJ FCPA attorney and along the same lines what DOJ FCPA enforcement attorneys need to understand about being an FCPA practitioner. Darden also provides a list of things he would change about the FCPA or FCPA enforcement and comments on recent FCPA enforcement actions concerning internship and hiring practices.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

Rep. Perlmutter, Once Again, Introduces FCPA Reform Bill, But This Time Goes Political

March 20, 2017

U.S. Representative Ed Perlmutter (D-CO) is persistent.

In 2009, he introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail. (See here and here for prior posts). In 2011, he again introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail. (See here for the prior post). In 2016, he again introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail (See here for the prior post).

Last week, Perlmutter once again introduced the “Foreign Business Bribery Prohibition Act” in the House (H.R. 1549), but this time he attempted to make a political statement.

Even though H.R. 1549 is substantively the same bill as Perlmutter introduced in 2009, 2011 and 2016, the supposed purpose of H.R. 1549, as stated in his press release, is to “help stop corruption and foreign bribery under the Trump Administration.”

Continue Reading