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Rebuttal Points Regarding Lessons From The First Six Months Of The FCPA Pilot Program


Recently Robert Kent (Baker McKenzie) penned this article in Law360 titled “The First 6 Months of FCPA Pilot Program: 10 Lessons.”

This post contains various rebuttal points regarding the article.

First, the article implicitly asserts that the “surge” in FCPA enforcement thus far in 2016 is casually related to announcement of the April 2016 FCPA Pilot Program by the DOJ.

Yes, 2016 has been a record-breaking year for FCPA enforcement as highlighted in this post.

However, the enforcement activity is not casually related to the Pilot Program.

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Survey Responses Indicate That The More Things Change, The More They Remain The Same

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The “Story of the Foreign Corrupt Practices” highlights how Congress clearly understood and appreciated the many difficult foreign business conditions facing U.S. companies.

For instance, the 1976 SEC Report on Questionable and Illegal Corporate Payments and Practices, on which Congress placed great reliance during its multi-year legislative process leading to the FCPA, documented a wide range of foreign corporate payments to a variety of recipients for a variety of reasons including payments “to persuade low-level governmental officials to perform functions or services which they are obligated to perform as part of their governmental responsibilities, but which they may refuse or delay unless compensated.”

Congress could have legislated as to the wide range of foreign corporate payments brought to its attention and certain bills introduced during the multi-year legislative process leading to the FCPA did indeed capture a wide range of payments. Yet, in passing the FCPA Congress intended to capture only a narrow range of foreign corporate payments.

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Issues To Consider From The GlaxoSmithKline Enforcement Action


This prior post highlighted the SEC’s recent Foreign Corrupt Practices Act enforcement action against GlaxoSmithKline.

In the action,  GSK coughed up $20 million to resolve an administrative action finding that employees and agents of its China-based subsidiary and China-based joint venture provided various things of value to healthcare professionals in China.

This post highlights additional issues to consider from the enforcement action.

By the Numbers

According to FCPAnalytics, the $20 million civil penalty GSK agreed to pay to resolve the matter is the 2nd largest SEC civil penalty in an FCPA enforcement action. In addition, the $20 million settlement is the 5th largest SEC only FCPA enforcement action of all-time (in other words an SEC enforcement action lacking a DOJ component).

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Record-Breaking: There Have Been More Corporate FCPA Enforcement Actions In 2016 Than Any Prior Year In FCPA History

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Last week was an active week in Foreign Corrupt Practices Act enforcement as the SEC fiscal year came to a close.

A full three months remain in 2016 FCPA enforcement.

However, 2016 is already a record-breaking year

There have been more corporate enforcement actions in 2016 than any prior year in FCPA history.

Listed below are the 22 corporate enforcement actions thus far in 2016.

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Circling Back On The Ping / Harris Corp. Matter


This September 15th post regarding the SEC’s enforcement action against Jun Ping Zhang (the former Chairman and CEO of CareFx China, a dissolved Chinese subsidiary of Harris Corp) noted that the SEC, in the Ping Order, found that as a result of Ping’s conduct “Harris violated the FCPA’s books and records provisions.”

Elsewhere, the Order stated that as a result of the alleged improper conduct CareFx was awarded over $9.6 million in contracts.

Accordingly, the prior post wondered whether a future Foreign Corrupt Practices Act enforcement action against Harris Corp. would be forthcoming. Indeed, there have been several examples of the SEC first bringing an FCPA enforcement action against an individual and then following up with an FCPA enforcement action against the company. (For instance, in August 2015 the SEC brought an FCPA enforcement action against Vicente Garcia (a former head of Latin American sales for SAP) followed by SAP enforcement action in February 2016- see here).

It turns out that the answer to the question: will there be an FCPA enforcement action against Harris Corp. is no because in this SEC release issued on September 12th (a day before the September 13th Ping Order) the SEC states:

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