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Friday Roundup

Roundup

Interesting, across the pond, non-profit scrutiny, and for the reading stack. It’s all here in the Friday roundup.

Interesting

The DOJ’s FCPA’s Corporate Enforcement Policy states:

“When a company has voluntarily self disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated … there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”

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Friday Roundup

Roundup

Scrutiny alerts and updates, quotable, and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

As highlighted in this recent post, Glencore plc, an Anglo–Swiss mining company with headquarters in Switzerland and ADRs traded on a U.S. exchange recently announced that it received a subpoena from the DOJ “to produce documents and other records with respect to compliance with the Foreign Corrupt Practices Act and United States money laundering statutes.  The requested documents relate to the Glencore Group’s business in Nigeria, the Democratic Republic of Congo and Venezuela from 2007 to present.”

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Judge Chuang Is Right, Even Though He Felt Powerless To Act

Judge Chuang

Ever since non-prosecution agreements and deferred prosecution agreements have become a prominent feature of the Foreign Corrupt Practices Act landscape, I’ve noted that such alternative resolution vehicles are troubling for two distinct, yet equally problematic public policy issues.

In short, alternative resolution vehicles allow “under-prosecution” of egregious instance of corporate bribery, while at the same time facilitate the “over-prosecution” of business conduct.  (See here for the 2010 article “The Facade of FCPA Enforcement,” here for a prior post among others, and here for the 2015 article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement).

As to the former, kudos to Judge Theodore Chuang (D.Md.) for recognizing this as well.

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News Flash – Canadian Businesses Prefer Less Harsh Criminal Sanctions And Other Observations Relevant To Canada’s Movement Towards DPAs

Canada2

These pages have closely followed Canada’s movement towards DPAs. (See here and here for prior posts including my submission to the Canadian government encouraging it to say “no” to DPAs).

As predicted in my 2010 article “The Facade of FCPA Enforcement” other nations would soon start to salivate over alternative resolution vehicles because they are easy, efficient and yield a greater quantity of enforcement actions allowing them to “catch up” to the U.S. in terms of “enforcing” bribery laws. This is precisely what happened in the U.K. and France and is happening in Australia and Canada.

Recently, the Canadian government released this document titled “Expanding Canada’s Toolkit to Address Corporate Wrongdoing: What We Heard.” As discussed below the document is laughable in certain respects and otherwise fails to capture several salient points relevant to Canada’s movement towards DPAs.

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Friday Roundup

Roundup

Scrutiny alerts and updates, ripple, didn’t fit the narrative, too far into the weeds, the emerging global facade of enforcement and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

Amway

Multilevel marketing companies Avon and Nu Skin Enterprises previously resolved FCPA enforcement actions concerning conduct in China. (See here, here, here, here and here for prior posts). Multilevel marketing companies USANA and Herbalife are currently under FCPA scrutiny for its business practices in China.

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