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Facade Of Enforcement Across The Pond

Laughable

A facade of Foreign Corrupt Practices Act enforcement is when a business organization – often for reasons of risk aversion and efficiency – agrees to resolve an enforcement action in the absence of any judicial scrutiny even though no employee or agent of the company (business organizations obviously can only act through real human beings) was charged. (See here for the article “The Facade of FCPA Enforcement” and here for the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement.”)

Even more troubling is when employees are charged, put the government to its burden of proof, are acquitted yet the business organization still resolves an enforcement action based on the same underlying conduct.

This 2014 post, published after the United Kingdom formally adopted deferred prosecution agreements, was titled “The U.K. Enters the Facade Era.” As discussed below, recently there was a major facade moment in the U.K.

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DOJ Releases Memo Titled “Evaluating A Business Organization’s Inability To Pay A Criminal Fine Or Criminal Monetary Penalty”

inabilitypay

Prior posts here and here highlighted several Foreign Corrupt Practices Act enforcement actions in which a company received a reduction in the settlement amount based on a claimed inability to pay. In certain instances, it appears as if the DOJ / SEC were duped (see here for example).

Thus, yesterday’s release of this non-binding DOJ policy memo titled “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty,” while not FCPA specific, is FCPA relevant.

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DOJ Deputy Assistant Attorney General Miner On “The Two Primary Goals Of White Collar Criminal Enforcement” (With Commentary)

miner

It’s mid-September which means a few things: the days are getting shorter, the trees are beginning to show color, and DOJ and SEC enforcement officials are on the speaking circuit.

Earlier this week it was SEC Chairman Jay Clayton (see here for the prior post) and yesterday it was DOJ Deputy Assistant Attorney General Matthew Miner who spoke on the two primary goals of white collar criminal enforcement: “(1) to deter legally non-compliant behavior and punish it where it does occur; and (2) to encourage greater compliant behavior, including creating a more level playing field for those who play by the rules.”

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Issues To Consider From The Vantage Drilling Enforcement Action

Issues

This previous post went in-depth into the rather unusual Vantage Drilling Foreign Corrupt Practices Act enforcement action and this post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted here, in July 2015 (or shortly thereafter) Vantage Drilling voluntarily disclosed to the DOJ/SEC. Thus, from start to finish the company’s FCPA scrutiny lasted approximately 3.5 years. While this is below recent averages of approximately 4.5 years, it is still too long for FCPA scrutiny to last particularly since Vantage Drilling, in the words of the SEC:

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Friday Roundup

Roundup

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

Funny

According to the FCPA Blog, there is “nothing too complicated or expensive” about FCPA compliance.

That’s funny because on a daily basis FCPA Blog content is flanked by approximately 20 blinking and flashing ads from FCPA Inc. participants.

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