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Friday Roundup

Roundup

Ironic, scrutiny update, and for the reading stack. It’s all here in the Friday roundup.

Ironic

As highlighted in this previous post, in February 2016 SAP (a German company with American Depository Shares registered with the SEC) resolved a $3.9 million FCPA enforcement action based on conduct in Panama and was ordered to cease and desist from committing or causing any violations and any future violations of the FCPA’s books and records and internal controls case.

Fresh off its 2016 FCPA enforcement action, SAP again became the subject of FCPA scrutiny. (See here for the prior post). Indeed, yesterday the Wall Street Journal reported:

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

proposal

Including the first time I proposed this concept in 2010, this is the sixth time I have written this general post (see here, here, here, here and here for the previous versions) and 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 enforcement agency publicly state, in a thorough and transparent manner, the facts the company disclosed and why the enforcement agency did not bring an enforcement action based on those facts.

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DOJ Defines “Declination” in Its FCPA Corporate Enforcement Policy

definition

For years, these pages have highlighted (see prior posts herehere, and here among others) how the term “declination” is a big, muddy mess largely because of the creative and expansive use of that term by certain commentators including most notably over at the FCPA Blog and Miller & Chevalier.

To use the term “declination” anytime a company is under FCPA scrutiny (perhaps because of something as simple as a media report or a business competitor’s complaint), but there is no enforcement action is like saying the police “declined” to charge a sober driver with drunk driving when passing through a field sobriety checkpoint.

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FCPA Flash – A Conversation With Leslie Caldwell (Former Ass’t AG, DOJ Criminal Division) About The DOJ’s New “FCPA Corporate Enforcement Policy”

Podcast Logo

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 Leslie Caldwell. Caldwell is currently partner in the San Francisco and Silicon Valley offices of Latham & Watkins and previously served as the Assistant Attorney General of the DOJ’s Criminal Division. In this role, Caldwell was involved in implementing and promoting the DOJ’s April 2016 FCPA Pilot Program.

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Issues To Consider From The SBM Offshore Enforcement Action

Issues

This previous post went in-depth into the $238 million DOJ Foreign Corrupt Practices Act enforcement action against Netherlands-based SBM Offshore for alleged bribery schemes in Brazil, Angola, Equatorial Guinea, Kazakhstan and Iraq.

This post continues the analysis by highlighting additional issues to consider.

DOJ Explains Its Original “Declination”

As highlighted in the original post, in 2014 SBM Offshore resolved a $240 million Dutch law enforcement action alleging bribery schemes in Equatorial Guinea, Angola and Brazil between 2007 through 2011. In connection with that action, SBM Offshore disclosed: “the United States Department of Justice has informed SBM Offshore that it is not prosecuting the Company and has closed its inquiry into the matter.”

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