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This Week On FCPA Professor

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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.

This FCPA Flash podcast episode use two FCPA related civil actions to discuss privilege issues associated with internal investigations.

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FCPA Enforcement Officials Address COVID-19 Related Questions

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Earlier this week, Daniel Kahn (Sentior Deputy Chief, DOJ Criminal Division – Fraud Section) and Charles Cain (SEC FCPA Unit Chief) participated in this webinar.

During the webinar, Kahn and Cain addressed a variety questions related to their respective enforcement agencies relative to the COVID-19 crisis.

Set forth below are the issues addressed and their responses.

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DOJ’s Kahn Answers The PPE FCPA Hypothetical

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One common Foreign Corrupt Practices Act hypothetical that has been repeated often over the last couple of months sort of goes like this. The current COVID-19 crisis presents increased FCPA risks because, among other things, businesses are scrambling to secure personal protective equipment (PPE) for their workers and some of this PPE may be located in foreign countries and/or manufactured by foreign governments or state-owned or state controlled enterprises. (See here, here, here, and here for examples).

I’ve never really understood this hypothetical. Among other things, in the FCPA’s 40+ year history I am not aware of any enforcement action in which the alleged improper conduct occurred in connection with the purchase of a good or service rather than in connection with selling or facilitating the sale of a good or service.

Moreover, as highlighted in this prior post, the FCPA has, among other elements, a corrupt intent element.

As highlighted below, during a webinar yesterday Daniel Kahn (Senior Deputy Chief, U.S. Department of Justice Criminal Division – Fraud Section) addressed a version of this hypothetical.

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Saudi Sovereign Wealth Fund Takes Positions In Several U.S. Companies

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As highlighted in this Wall Street Journal article, the Public Investment Fund (Saudi Arabia’s sovereign wealth fund) recently took positions in numerous U.S. companies. (See here for its recent filing).

As stated in the article:  “The Public Investment Fund in the first quarter bought shares valued at about half a billion dollars each in Facebook, Walt Disney Co., Marriott International, and Cisco Systems …  The fund bought financial stocks, investing $522 million in Citigroup and $488 million in Bank of America Corp, while also spending $714 million on a stake in Boeing.”

While there is nothing inherently problematic under the Foreign Corrupt Practices Act with having a relationship with a sovereign wealth fund, as highlighted below several FCPA enforcement actions have involved individuals associated with sovereign wealth funds.

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FCPA Flash Podcast – A Conversation With Joan Meyer And Matthew Ridings About Privilege Issues In Internal Investigations

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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 podcast episode is a conversation with Thompson Hine attorneys Joan Meyer and Matthew Ridings. During the podcast, Meyer and Ridings use two FCPA related civil actions (here and here) to discuss privilege issues associated with internal investigations.

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