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Friday Roundup

Roundup

Scratch that trial, scrutiny alert, affirmed, follow-up, Braskem-related, and across the pond. It’s all here in the Friday roundup.

Scratch That Trial

One of the FCPA trials scheduled this Fall (see here for the prior post) involved Frank Chatburn. As highlighted here, in April 2018 Frank Roberto Chatburn Ripalda (a dual United States and Ecuadorian citizen) was criminally charged for conspiring with others for making corrupt payments to PetroEcuador officials in order to obtain and retain contracts for Galileo (described as an Ecuadorian company that provided services in the oil and gas industry) from PetroEcuador.

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Foreign Lawyers Are Third Parties Too

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Companies doing business in the global marketplace engage all types of third parties. Generally, Foreign Corrupt Practices Act compliance tends to focus, with good reason, on third parties such as agents, representatives, distributors and others that assist a company in obtaining or retaining business.

However, given the DOJ and SEC’s broad interpretation of that element of the FCPA’s anti-bribery provisions, any third party that has a point of contact with foreign officials – even if outside the context of foreign government procurement – can potentially expose a business organization to scrutiny and enforcement.

This includes foreign lawyers as the recent Quad/Graphics enforcement action demonstrates (see here and here for prior posts).

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DOJ Releases Memo Titled “Evaluating A Business Organization’s Inability To Pay A Criminal Fine Or Criminal Monetary Penalty”

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Prior posts here and here highlighted several Foreign Corrupt Practices Act enforcement actions in which a company received a reduction in the settlement amount based on a claimed inability to pay. In certain instances, it appears as if the DOJ / SEC were duped (see here for example).

Thus, yesterday’s release of this non-binding DOJ policy memo titled “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty,” while not FCPA specific, is FCPA relevant.

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An FCPA Enforcement Action Against A U.S. Company Is More Than Twice As Likely To Originate From A Voluntary Disclosure Compared To An FCPA Enforcement Action Against A Non-U.S. Company

Statistical Analysis

At last week’s FCPA Institute – Boston (attended by a diverse group of professionals from leading companies and firms from around the world) a participant asked about any differences between the percentage of U.S. company Foreign Corrupt Practices Act enforcement actions that originate with a voluntary disclosure vs. FCPA enforcement actions against non-U.S. companies that originate with a voluntary disclosure.

I responded that U.S. company enforcement actions were much more likely to result from voluntary disclosures compared to non-U.S. company enforcement actions, but promised to provide the actual numbers and they are set forth below (courtesy of FCPAnalytics).

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FCPA Flash Podcast – A Conversation With Former DOJ FCPA Prosecutor Samer Korkor On International Cooperation

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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 episode is a conversation with Samer Korkor who left the DOJ’s FCPA Unit in May 2019. Korkor is currently a law professor at the David Clarke School of Law at the University of District Columbia and his other professional experiences include: Counsel to the DOJ’s Assistant Attorney General of the Criminal Division, Counsel to the DOJ’s Deputy Assistant Attorney General on International Affairs, Special Assistant United States Attorney in the U.S. Attorney’s Office for Washington D.C., and as an attorney in DOJ’s Office of International Affairs. During the podcast, Korkor discusses the framework for transnational cooperation and multi-jurisdictional resolutions – areas of significant importance to FCPA and other white collar investigations and prosecutions.  Korkor’s comments happen to be particularly relevant to recently initiated Congressional impeachment inquiries as Korkor explains how the DOJ typically reaches out to foreign governments for investigative assistance.

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