Top Menu

It’s Important To Remember That The Internal Controls Standard Is “Reasonable”

Reasonable

This recent post discussed how the COVID-19 crisis once again demonstrates that there is a difference between the FCPA anti-bribery provisions (the statute) and how the FCPA’s anti-bribery provisions are enforced by the DOJ/SEC.

In the current crisis, some have raised legitimate concerns that doing risk assessments, due diligence of third parties, monitoring of third parties, in-country audits, and a host of other internal controls “best practices” have become difficult if not practically impossible – and thus Foreign Corrupt Practices Act violations are lurking. After all, the DOJ says a business organization should do the above-listed things (among others) in its Evaluation of Corporate Compliance Programs (“ECCP”)

Compliance professionals – take a deep breath. The ECCP is not the law and courts have held that failure to follow supposed “best practices” is not a legal violation.

Rather, in times like these remember that the internal controls standard is “reasonable.” “Reasonable” is a term used throughout the law and when used the standard contemplates a variety of factors including the circumstances in which conduct occurs. Indeed, this position finds grounding in the FCPA itself, its legislative history, FCPA judicial decisions, and even prior FCPA enforcement agency guidance.

Continue Reading

A Roundup Of FCPA Or Related Articles About COVID-19

Roundup

This recent post discussed how the COVID-19 crisis (and potential Foreign Corrupt Practices Act implications as a result of the crisis) once again demonstrates the difference between the FCPA (the statute as written by Congress and interpreted by courts) and the FCPA as enforced by the DOJ and/or SEC.

This post rounds up other FCPA or related articles regarding COVID-19.

Addressing Anti-Corruption Risks From the Coronavirus (March 4th)

Continue Reading

The Difference Between The FCPA (The Statute) And The FCPA As Enforced During The COVID-19 Crisis

roadsplits

Many people, not surprisingly, view current events through the lens of their profession. Indeed, there have been some thoughtful pieces written about the Foreign Corrupt Practices Act as the COVID-19 crisis unfolds. (See here, here, here and here).

Some of these articles have focused on the FCPA risks of moving product across borders, interacting with customs and border officials, and/or interactions with “foreign officials” in connection with licensing, permitting, and other regulatory issues.

My own two cents on FCPA issues in the midst of COVID-19 is that it once again demonstrates the difference between the FCPA (the statute as written by Congress and interpreted by courts) and the FCPA as enforced by the DOJ and/or SEC. (See herehere, and here for prior similar posts).

Continue Reading

Powered by WordPress. Designed by WooThemes