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An Article Based On A Fallacy

Fallacy

Recently on the FCPA Blog, Professor Andy Spalding touted his article “Restoring Pre-Existing Compliance Through the FCPA Pilot Program.”

I’ve previously wrote about the DOJ’s FCPA Pilot Program in April 2016 soon after it was released (see here for the article “Grading the DOJ’s FCPA Pilot Program”) and am no big fan of the Program for the reasons discussed in the article.

Moreover, as highlighted in this prior post, given the DOJ’s self-described “principal goal” of the Program – that is “to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self disclose FCPA-related misconduct,” the Program has been an utter failure in that the DOJ has self-identified seven corporate matters as being resolved pursuant to / or consistent with the Pilot Program: (Nortek, Akamai Technologies, Johnson Controls, HMT LLC, NCH Corp, Linde Gas, and CDM Smith), yet none of these matters (zero, zilch, nada) have involved related prosecution of individuals.

In any event, the apparent thesis of Spalding’s article seems to be that the Pilot Program is step back from prior FCPA guidance such as the 2012 FCPA Guidance because the Pilot Program is silent regarding pre-existing compliance. However, any reasonably informed FCPA practitioner will recognize upon reading the full article that this apparent thesis is based on a fallacy.

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Friday Roundup

Roundup

Across the pond, the big picture, ripple, a muddy mess, to FCPA Inc., scrutiny alert, silly and erroneous, misleading, ISO 37001 related, and for the reading stack.

It’s all here in the Friday roundup.

Across the Pond

In this recent speech, David Green (Director of the U.K. Serious Fraud Office) said the U.K. Bribery Act is “regarded as a gold standard internationally” and, as further proof that so-called enforcement competition does exist, he stated:

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Friday Roundup

Roundup

Overhead at the town hall meeting, sentenced, investigative fees, “fake” FCPA news, fairly obvious, hook-line-and-sinker, fore, pardon me for being a stickler, ISO37001 related, and purely speculative and not credible.

It’s all here in the Friday roundup

Overhead at the Town Hall Meeting

I can’t imagine that the FCPA is a frequent topic of discussion at New England town hall meetings. But as highlighted here it was recently a topic of discussion as “the new operator of a popular ski resort in New Hampshire [Och-Ziff]  faced off against concerned residents, some of whom fear the company’s past legal troubles raise doubts about whether it was the right choice to oversee the facility.”

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Vantage Drilling Announces Closure Of DOJ Investigation, Just Don’t Call It A “Declination”

Vantage

I hope the usual suspects don’t muddy up the conversation again by calling this one a “declination.” (See here for the recent post).

As highlighted in this August 2015 post, Houston-based Vantage Drilling disclosed:

“In July 2015, we became aware of media reports that our agent utilized in the contracting of the Titanium Explorer drillship has entered into a plea arrangement with the Brazilian authorities in connection with the agent’s role in obtaining bribes on behalf of former Petrobras executives.  We have since confirmed that our agent, who has represented multiple international companies in their contracts with Petrobras, has entered into such discussions and provided evidence to the Brazilian authorities of an alleged bribery scheme between the former Petrobras executives and a former director of Vantage.

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Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By MTS Systems

MTS

This post two weeks ago addressed the same topic as today’s post and quite frankly I am growing tired of writing this same general post for what seems like the umpteenth time. However, until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the “declining” enforcement agency publicly state, in a thorough and transparent manner, the facts the company disclosed and why the “declining” agency did not bring an enforcement action based on those facts.

As highlighted in this March 2012 post, Minnesota-based MTS Systems Corp., a global supplier of test systems and industrial position sensors, disclosed:

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