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Delisting Of U.S. Securities As A Potential Negative Collateral Consequence Of Expansive FCPA Enforcement Against Foreign Issuers

March 25, 2019

Foreign issuers (that is companies with shares traded on a U.S. exchange) are certainly subject to the Foreign Corrupt Practices Act.

The mere listing and trading is all that is required under the FCPA’s books and records and internal controls provisions for jurisdiction.

In contrast the anti-bribery provisions, as applicable to foreign issuers, have the following jurisdictional requirement: “use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance” of a bribery scheme. Thus, as frequently highlighted on these pages, it is a myth that the FCPA’s anti-bribery provisions are extraterritorial as to foreign issuers. Nevertheless, it is true that the FCPA enforcement agencies take a very broad view (in certain instances in apparent conflict with Supreme Court decisions) of its jurisdiction over foreign issuers.

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This Week On FCPA Professor

March 23, 2019

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor.

As highlighted in this post, in recent years the U.S. government has secured approximately $1.7 billion in FCPA settlements largely on the theory that Gulnara Karimova is a “foreign official.” However, recently a Swedish court concluded that she is not.

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The Burgeoning Marijuana Industry And The FCPA

March 22, 2019

Assessing whether a new and growing industry has risk under the Foreign Corrupt Practices Act is not really a complex assessment.

At its most basic level, it involves assessing whether the industry has points of contact with “foreign officials” in the global marketplace.

As highlighted in this post, the burgeoning marijuana industry certainly does and the FCPA risk of this industry is no different than several other agricultural companies that have resolved FCPA enforcement actions.

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Let’s Analyze This For A Minute

March 21, 2019

This recent Wall Street Journal Risk & Compliance Journal post by an individual new to the Foreign Corrupt Practices Act space reads in full:

“A U.S. Justice Department program that incentivizes companies to self-report foreign corruption is making headway as prosecutors look for ways to hold individuals accountable for wrongdoing, according to an official in the department’s Foreign Corrupt Practices Act unit.”

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Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

March 20, 2019

This 2014 post highlighted Canadian charges against Robert Barra and Shailesh Govindia (individuals previously associated with Cryptometrics) for bribing Indian officials including those associated with Air India.

As highlighted in the below post, a Canadian court recently concluded that violations under Canada’s FCPA-like law – the Corruption of Foreign Public Officials Act (CFPOA) – are a specific intent offense and that Barra did not know the individual he allegedly bribed was a “foreign public official.”

As further highlighted below, the Canadian court’s specific intent ruling conflicts with certain FCPA jurisprudence while the Canadian court’s ruling regarding knowledge of the status of a “foreign public official” ruling is consistent with certain U.S. jurisprudence – namely U.S. v. Carson – in which the court issued a “knowledge of status of foreign official” jury instruction prior to trial. (See here).

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