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FCPA Challenge

FCPA Challenge

How much do you know about the Foreign Corrupt Practices Act? Let’s find out.

To commemorate the FCPA’s 40th year, FCPA Professor is presenting the FCPA Challenge.

Each Thursday during 2018, a question will be posed and the answer will be below the fold.

This week’s question is: in 2016, this company became the first Canadian company to resolve an FCPA enforcement action?

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The Government Bears Some Responsibility For Certain FCPA Enforcement Actions


Many Foreign Corrupt Practices Act enforcement actions do not occur in a vacuum. In certain instances, the road to FCPA violations is laid years, in some cases decades, earlier by government policy encouraging certain companies to do business in certain countries to accomplish certain political objectives.

An analogy would be a parent telling a child to go play in the playground frequented by”bad” kids and then, after a few weeks, the child swearing and telling dirty jokes around the house. In other words, don’t be surprised by the end result, the parent sent the child to the playground in the first place.

In light of the recent FCPA enforcement actions concerning business conduct in Libya (see here and here) in which the U.S. government explicitly encouraged companies to do business in the country upon the lifting of sanctions in 2004, it is worth pausing to consider whether the government bears some responsibility for certain FCPA violations.

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Cryptocurrencies And The FCPA: So What?


There are many things that are FCPA relevant, but not all things are FCPA relevant. As to the later, I’ve been asked several times in recent months different versions of the same general question: what is your view of cryptocurrencies and the FCPA?

I suppose if I wanted to I could blast out (like many FCPA Inc. participants often do) an alert or article highlighting the “emerging risks” and or “hidden dangers” of cryptocurrencies and then use this trigger to market Foreign Corrupt Practices Act compliance services. But this is not what motivates me to write or consistent with my goal of being candid and calling the “balls and strikes” as I see them the regardless of what it may mean for my pocketbook.

Thus, as highlighted below in more detail, my general answer to the above question has been: I don’t really have a view because I don’t think cryptocurrencies – from the standpoint of liability under the FCPA’s anti-bribery provisions – present any unique issues.

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FCPA Enforcement Actions Against Japanese Companies


When thinking of foreign companies that have resolved Foreign Corrupt Practices Act enforcement actions, most people likely think of German and French companies and to be sure there have been several enforcement actions against companies from those countries.

Yet, the top domiciliary of foreign companies to resolve FCPA enforcement actions is actually Japan.

This post highlights the seven FCPA enforcement actions against Japanese companies and/or related entities (all since 2011) that have netted the U.S. treasury approximately $705 million. Even though approximately 50% of corporate FCPA enforcement actions originate from voluntarily disclosures, none of the enforcement actions against Japanese companies originated in this manner.

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Once Again The DOJ Shoots Itself In The Foot


This is the fourth time this general post has appeared on these pages (see here, here and here for prior posts).

So here it goes again.

The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. Why then does the DOJ continually make decisions that should result in any board member, audit committee member, or general counsel informed of current event not making the decision to voluntarily disclose?

The recent Societe Generale enforcement action (see here and here for prior posts) is just the latest example.

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