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An Instructive Example Of An FCPA Enforcement Action Having Nothing To Do With Foreign Bribery


Conveying knowledge about the Foreign Corrupt Practices Act’s anti-bribery provisions is relatively straight-forward as there are specific elements or issues such as anything of value, foreign official, obtain or retain business, jurisdiction, facilitating payments and various affirmative defenses. Moreover, in some cases statutory definitions assist in the analysis.

Conveying knowledge about the FCPA’s other provisions – the books and records and internal controls provisions – is often more difficult because these provisions – aside from the term reasonable – are basically standardless as written. Indeed, in SEC v. Worldwide Coin the judge stated:  “The main problem with the internal accounting controls provision of the FCPA is that there are no specific standards by which to evaluate the sufficiency of controls; any evaluation is inevitably a highly subjective process in which knowledgable individuals can arrive at totally different conclusions.” Continue Reading

SEC Administrative Law Judge Gets It Right When Talking About The Books And Records And Internal Controls Provisions

great job

These pages have frequently highlighted legislative history relevant to the Foreign Corrupt Practices Act’s books and records and internal controls provisions (see here among numerous other posts) as well as prior SEC guidance on these provisions including most notably a 1981 speech by Harold Williams (Chairman of the SEC).

Demonstrating once again that this “old” legal authority and guidance remains relevant in the FCPA’s modern era, in this recent administrative order, James Grimes (an SEC Administrative Law Judge) accurately stated:

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60% Of SEC FCPA Enforcement Actions In Recent Years Do Not Involve Charges Or Findings That An Issuer Violated The Anti-Bribery Provisions

Statistical Analysis

Between 2011 and 2018, the SEC brought 90 corporate Foreign Corrupt Practices Act enforcement actions.

However, only 36 of those actions (40%) involved charges or findings that a company violated the FCPA’s anti-bribery provisions. In other words, the majority of SEC corporate FCPA enforcement actions in recent years “merely” involve books and records and/or internal controls charges or findings.

Strangely, as further highlighted below, several SEC enforcement actions that did not involve civil charges or findings of anti-bribery violations, did involve the DOJ (an agency that enforces the FCPA criminally) bringing criminal anti-bribery charges.

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Civil Enforcement of Canada’s Foreign Corruption Law?


A guest post by Graeme Hamilton and Omar Madhany (both with Borden Ladner Gervais LLP in Toronto).

Perhaps the starkest difference between the Foreign Corrupt Practices Act and Canada’s foreign corruption law—the Corruption of Foreign Public Officials Act (CFPOA)—is the fact that the CFPOA may only be enforced criminally.  As a result, enforcement authorities in Canada are held to the higher criminal standard of proof beyond a reasonable doubt when negotiating with a company to resolve a CFPOA investigation or contemplating whether to bring CFPOA charges.

The lack of a civil enforcement mechanism for the CFPOA is often cited as one of the main reasons for the disparity between the volume of foreign corruption enforcement activity in the U.S. and Canada.  A recent settlement announced by the Ontario Securities Commission (OSC) with Katanga Mining Ltd. (Katanga), however, may signal the beginning of a shift in this landscape by establishing a role for Canada’s securities regulators in tackling foreign corruption from a civil context.

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No Shut Down For FCPA Enforcement


The last week of December has traditionally been an active week for Foreign Corrupt Practices Act enforcement. However, with the partial government shutdown there was an open question what would happen with the end of 2018.

Yesterday, the SEC answered that question by announcing two enforcement actions: (i) a $2.5 million action against Brazil-based Centrais Elétricas Brasileiras S.A. (Eletrobras); and (ii) a $16 million action against Polycom.

This post highlights the Electrobras enforcement action and another post will highlight the Polycom enforcement action

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